Patently-O

The concept of strong IP is relatively new, and most people don't respect it much when it gets in their way. That's why https://thepiratebay.org/ and https://sci-hub.tw/ are so popular. On the other hand, many countries have laws on the books that protect IP, including China. For example, foreign plaintiffs in patent lawsuits in China have a win rate of 84.35%, higher than the 79.84% win rate of domestic plaintiffs: https://patentlyo.com/patent/2018/02/things-infringement-litigation.ht… The real problem with IP infringement in China is that Western companies frequently don't notice when it happens, because they don't have contacts in the Chinese market. That's why TFA recommends the affected publishers report the infringement of their IP to get the app taken down.

You've apparently never met anyone from the patent bar. Their entire purpose nowadays is often to justify monopolies based on nothing more than doing it on a computer. [0] The judges of the CAFC -- the patent court -- make a deliberate effort to pose as innocent fools being astonished by the most basic applications of computers. [1] That's the root of the new power of the patent system. Of course, the current subject proves that even legitimate worthwhile research can produce absurd and abusive patents. [0] http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/13-15… [1]http://patentlyo.com/patent/2015/10/concentrated-patent-jurisdictions.…

http://patentlyo.com/patent/2007/04/patent_jurisdic.html does a good job of explaining. Basically, the federal circuit's view of 28 USC 1391 is very different than 28 USC 1400. If you look at cases prior to VE Holdings, they view 28 USC 1400, and in particular, the definition of "resides", very narrowly (to principal place of business/corp hq). If you look at VE Holdings, and their view on 28 USC 1391, you can see it greatly expands the definition of "resides" to include essentially everywhere.

My dynamics professor mentioned to me that most of the physics world considered themselves to have conquered human knowledge at the end of the 19th century. The famous apocryphal quote from the head of the patent office saying that everything that could have been invented, had, comes to mind. (http://patentlyo.com/patent/2011/01/tracing-the-quote-everything-that-… I found out from another professor that the first had actually wanted to go into physics in his young life, but was encouraged to get into engineering, since hard science had basically been played out. Of course, the early 20th century took off, and we have the classic picture of Einstein seated with all the other great scientists of the day. This is the group my prof could have rubbed shoulders with, and he was apparently a little bitter about it. I probably would have been too.

I sent this article to a friend who is a patent attorney, and he hasn't followed the case but based on this: http://patentlyo.com/patent/2014/03/software-patent-eligibility.html the Forbes article's claims are unlikely.

A patent is technically also required to teach to a person skilled in the prior art on how to build the invention. Here is an excerpt from [1]: "Second, if the inventor did possess a best mode, it must be determined whether the written description disclosed the best mode such that a person skilled in the art could practice it." I have heard that the recent changes to the US patent laws have weakened this [2], though I have never read the details. [1] http://www.uspto.gov/web/offices/pac/mpep/s2165.html [2] http://www.patentlyo.com/patent/2013/05/best-mode-only-mostly-dead.htm…

If you cannot understand how people could possible think that software patents are acceptable, I recommend reading this article. [1] Not because it will convince you that software patents are good — it won't. But it will help you understand the thought process of lawyers who do think that there should be some software patents. For example, Goetz writes that he supports "patents where the preferred implementation of an inventive machine process is in software (via a computer program), hardware (via circuitry), or a combination of both software and hardware." [1] http://www.patentlyo.com/patent/2010/09/in-defense-of-software-patents…

The Federal Circuit's TSM (teaching, suggestion, or motivation) requirement for showing non-obviousness was overruled by the Supreme Court in its 2007 KSR v. Teleflex opinion, available at http://scholar.google.com/scholar_case?case=5415246430487863898 KSR stressed the need for common sense in obviousness analysis; it also mentioned that "obvious to try" can be considered. An excellent summary of the case by a young and well-regarded patent law professor is at http://www.patentlyo.com/patent/2007/04/ksr_v_teleflex_.html.

There have been a several good posts about various aspects of this bill on Patently-O: http://www.patentlyo.com/. These are a good counter to the vast amount of misinformation circulating about this bill. It seems nearly everyone has an opinion on this, whether they know anything about patent law (current and how it is being changed) or not.

It was probably a reasonable risk/return calculation on their part. What are the odds that they will be on the losing end of more than $3.14 billion in patent suits? How much interest can $3.14 billion earn between now and the time these hypothetical damages will have to be paid? The calculation might have gone differently if it hadn't been for the fairly recent SCOTUS decision that made it more difficult for a plaintiff to obtain a permanent injunction against distribution of an allegedly-infringing product ( http://www.patentlyo.com/patent/2006/05/supreme_court_v.html ). If it hadn't been for that decision, the Nortel patents might have been worth $3 billion and then some.

Here is a helpful study tracking the timing of Supreme Court decisions on patent cases following oral argument (http://www.patentlyo.com/patent/2010/06/bilski-watch-timing-of-supreme… Key quote: "Professor Joe Miller (Lewis & Clark) looked at the timing of 18 other recent Supreme Court patent decisions and concludes: 'if you feel like you've been waiting a long time to see the Bilski opinion, it's because you have been waiting a longer time than usual.'" Average delay is about 90 days; Bilski is at around 220 at this point.

A great example of a readable and effective contract I've found is the terms of use to the Patently-O blog: http://www.patentlyo.com/patent/2006/01/patentlyo_blog_.html It does a nice job of using the formal legal language but also introducing each section with a human readable explanation. The contract terms in the article are good in that they are human readable, but they lack legal precision. Consider the copyright assignment: "you own the graphics and visual elements" but "we own the XHTML markup, CSS and other code." There are plenty of ambiguities (if someone copies the layout, whose copyright is infringed? are the licenses exclusive? are they revocable?). Two judges could read this contract to mean substantially different things.

One of the comments here[0] raises an excellent point: >I don’t understand how this strategy would work. >The PTAB decisions about state colleges/universities are based on Eleventh Amendment immunity. On those cases, the IPR statute is trumped and cannot impede on the states’ sovereign immunity under the 11th Amendment. >But Native American tribes do not enjoy 11th Amendment immunity; their immunity is a function of federal common law and Congress has near plenary statutory authority over the tribes. Congressional statutes can abrogate or supersede tribal immunity, without constitutional issues. >Tribal immunity is more about immunity from the states over Native American tribes, based on federal supremacy over Native American affairs. >But AIA is federal. So the argument is simple; by enacting the AIA and subjecting issued patents to AIA reviews, and not making any exception for patents owned by Native American tribes, it abrogated any sovereign immunity that may have applied. >The patents obviously weren’t invented or originally prosecuted by the tribe; given the fact that the immunity is federal common law and policy-based (and not 11th Amendment-based), I can see that policy-based arguments about how manipulative this is, will be very receptive. [0]https://patentlyo.com/patent/2017/09/allergan-creating-sovereign.html

> The USPTO isn't required to follow court rulings. While technically true, it does not match reality. The PTO does update its processes to reflect recent cases: http://patentlyo.com/jobs/2009/03/ptos-current-examination-standards-f… http://patentlyo.com/patent/2014/06/issues-examination-instructions.ht… > The CAFC -- the patent appeals court -- is relentless in overturning Supreme Court precedents against software patents. If this appears to be the case, it's mostly because as you said, the Supreme Court does not understand software, and has consistently made everybody's lives harder by issuing vague, non-concrete opinions about patent eligibility and validity, overturning well-established procedures. The SC's current stand is "we know an invalid patent when we see one and will make up arbitrary reasons to invalidate it", but that does not help the PTO or the lower courts clear guidelines that they can implement. Also, it is not true that the CAFC overturns Supreme Court precedents, as can be seen in the spate of decisions following Alice: http://www.law360.com/articles/662776/a-look-at-everything-the-fed-cir…

> In short, we are getting more or less a coin toss > when it comes to patents being granted. And then the > cost shifts to legal proceedings, and sadly the threat > of these proceedings causes many innovative startups to > settle BEFORE any trial. The trolls then cite their > success in obtaining licensees as they go and > intimidate more small victims in a legal racket. I think we need a bit more evidence before we can make (or accept) the claim that granting a patent is a 'coin toss' (which for me implies that all patents are equally likely to be granted regardless of merit). My experience is that the number of "stupid" patents being issued, especially software patents, has consistently been reducing. Further the scrutiny that later software patents of which I'm familiar (two at Google, one at Blekko) were given a much more thorough going over than earlier patents I've been a part of. I attribute that to three things, one the number of examiners who are aware of modern technology is rising, two the image of the 'non practicing entity' as a leech is becoming accepted, and three politicians who supported a dysfunctional system have been made to look silly. All of those put pressure on the system to be better, as not to make people look silly or facilitate legal predation on small business. Part of the reason this is coming to a head now is because we're at the opening of the great unravelling. The dot com boom, and the software patent equivalent of…

> The current state of the patent system is such that having been granted a patent legally supersedes in power the act of enabling technological advancement. That is to say that the power of the patent system has surpassed its social justification... I'm not sure what your first sentence actually means, but there is not enough evidence to support the following sentence. I know it's a popular opinion around here, but really, it's because this place is an echo chamber when it comes to certain topics. There are studies that show how NPEs have beneficial effects (see work by Michael Risch, Jay Kesan, Anne Layne-Farrar etc.), and others showing their harmful effects are not as bad as media makes it look. The GAO report on NPEs, for instance, found that they are no big problem, really. Unfortunately, the data available is limited in a big way: there is no data at all on demand letters that trolls like Lodsys send. There's an act that would help track these things too (http://www.patentlyo.com/patent/2013/11/patent-reform-2013-demand-lett… and that's the one I'm really looking forward to. That data would give a much clearer picture of the NPE situation.

Might I ask, what do you think the FSF should do regarding software patents? The state impose the fact that there is software patents. FSF don't want software patents. Ignoring software patents resulted in the Novell deal and Microsoft "be very afraid tour". The tour which is explained by (http://www.computerworld.com/s/article/9019238/Update_Microsoft_wants_… and (http://www.patentlyo.com/patent/2007/05/microsoft_foss_.html). What would the FSF best action be here? The kernel team's opinion seems to be that we should be ignoring the patent situation in favor of contributions from companies who have lawyers who will take the broadest possible interpretation when assessing patent scope. (http://lwn.net/Articles/200422/) I can understand the kernel team point of view, and FSF. Both is valid approaches, but at the end you got to pick which devil you want to fight against. Currently, I dont see any patent agreements being levied against FOSS users, nor do I see any patent owners trying to claim ownership of the linux kernel. Maybe the GPLv3 patent agreement clause wasn't needed, or maybe the linux kernel is an exceptional project. I will need more data before claiming which "side" is right, or if both are.

> and no sensible business person would have been inclined to invest millions in an idea like IV. Boy, you couldn't be more wrong. IV has raised $5.5 billion[0] from the likes of[1]: * Adobe * Amazon.com * American Express * Apple * Cisco Systems * Detelle Relay KG * eBay, Inc. * Google * Microsoft * Nokia * Nvidia * OC Applications Research * SAP * Sony Corp. * TR Technologies * Verizon * Xilinx * Yahoo * Brown University * Cornell University * Grinnell College * Mayo Clinic * Northwestern University * Stanford University * University of Minnesota * University of Pennsylvania * University of Southern California * University of Texas * Allen SBH * Bush Foundation * Charles River Ventures * Commonfund Capital Venture Partners * Dore Capital * Flag Capital * Flora Family Foundation * Hewlett Foundation * Howard Hughes Medical Institute * Legacy Ventures * McKinsey and Co. * Next Generation Partners * Noregin Assets * Reading Hospital * Rockefeller Foundation * Roldan Block NY * Seqouia Holdings * Skillman Foundation * Sohn Partners * Taichi Holdings * TIFF Private Equity * White Plaza Group There seems to be a misunderstanding of who Intellectual Ventures are. Most people didn't know about them before the NPR stories that portrayed them as patent trolls (they are), but they are also well known as researches, as hiring a large number of great inventors and notable scientists, filing hundreds of their own patents for…

After doing some additional reading, I can now see what the basis for the pro-patent argument is. However, I disagree with it as I'm struggling with the concept of "because we touched it, it's now different". Below is a description, from a patent law blog, of the change that occurs during the gene isolation : "To be clear, the change in the molecule that the court is discussing is that the isolated DNA molecule is cleaved from the larger chromosomal DNA molecule by enzymatically cutting it off at each end and slightly altering the terminal amino acid groups." [1] From the same link, one judge ruled this as akin to plucking a leaf from a tree. While the analogy is simplistic - how is it [conceptually] different? Judge rulings below : Judge Bryson [minority] : [E]xtracting a gene is akin to snapping a leaf from a tree. Like a gene, a leaf has a natural starting and stopping point. It buds during spring from the same place that it breaks off and falls during autumn. Yet prematurely plucking the leaf would not turn it into a human-made invention. That would remain true if there were minor differences between the plucked leaf and the fallen autumn leaf, unless those differences imparted "markedly different characteristics" to the plucked leaf. Louie & Moore [majority ruling] : It is also important to dispute the dissent's analogy to snapping a leaf from a tree. With respect, no one could contemplate that snapping a leaf from a tree would be worthy of a patent, whereas…

The famous "everything that can be invented has been invented" quote attributed to Charles H. Duel, a late 19th-century commissioner of the US Patent Office, is apocryphal (http://www.patentlyo.com/patent/2011/01/tracing-the-quote-everything-t… but remains a comically potent response to this sort of short-sighted bullshit. There will always be new problems to solve. There will always be better solutions invented to existing problems. And solving problems experienced by a lot of people, and solving them well, will always be worth a lot of money. I run a 20-person webapp design and development consultancy, with employees all over the US and no central office. Group communication is a constant problem for us: we use Campfire rooms for most project communication, but frequently have to drop into Skype for ad-hoc video calls. I wind up in Google Chat several times a day with employees and clients as well. Campfire is great for realtime-ish team conversations, but if you want to ask a question like "hey, anyone want to go in on a house for SXSW?" you're probably better off sending an email if you want everyone to see it and have a chance to respond. We keep a lot of company docs in Google Docs, stuff which would really be more useful in the company wiki we don't have setup currently. I could go on, but the gist is that our communication tools for project teams, the company, clients, and 1-on-1 conversations are pretty…

The TL;DR is that the patent system is horribly broken and this is a shell company from East Texas trying to take the VC money of a hot new startup (among others). The more interesting question is whether or not they'll get stuck in EDT or not. People have found several tricks to escape that particular jurisdiction only to have the trolls invent new counters. It sounds like they've filed a Declaratory Judgement action here, but it's hard to tell. But DJAs can be quite complicated[1]. So you can practically have your case dismissed as not yet "ripe" only to have them turn around and sue you in a jurisdiction where they can get money out of you fast (usually East Texas). What I'd like to know from grellas is whether this particular DJA appears likely to succeed? Because I wouldn't be surprised any more to see it fail due to some oddball procedural trick, only to have them file suit in their home court the very next day. I even remember one time where a patent troll even abused a quirky local court rule in East Texas to file a day early and gain priority. In fact, I think that was complications arising out of that case that led to the shuttering of the excellent Patent Troll Tracker blog. [1] See, e.g. http://www.patentlyo.com/patent/2012/03/3m-v-avery-walking-the-line-of…

A detailed overview of the allegedly infringed upon patents can be found at http://patentlyo.com/media/2015/02/6-13-cv-00447-JRG-KNM-423-PRIMARY-D… And then to view the patents themselves, Google has a pretty good site where you can enter US patent numbers, like https://patents.google.com/patent/US7334720B2/en

> There is no analog for the first sale doctrine... There is. It is called patent exhaustion. See https://en.wikipedia.org/wiki/Exhaustion_doctrine_under_U.S._law There was a fad of issuing a "covenant not to sue" in lieu of a license, specifically to try to avoid triggering exhaustion, but courts seem to be (correctly, in my IANAL opinion) treating them as licenses anyway. See, e.g., https://www.patentlyo.com/patent/2013/01/3rd-circuit-covenant-not-to-s…

This is not true. Dependent claims are often viewed as "backup" claims in case the independent claims are rejected in prosecution by the patent examiner or found invalid by a court. It's not hard to find online sources to back this up, for example: https://patentlyo.com/patent/2008/05/theory-of-depen.html https://www.natlawreview.com/article/patent-owner-tip-12-surviving-ins…

Next up, we just need all public court records to be freely available to BE scraped and not $3 per page https://patentlyo.com/patent/2020/08/court-pacer-should.html

China's stereotype is having no copyright enforcement, but this seems to be wrong. >Plaintiffs won in 80.16% of all patent infringement cases included in the population. Such a win rate was higher than its counterparts in many major countries – Germany (approximately 66%) and the United States (approximately 60%), for example. https://patentlyo.com/patent/2018/02/things-infringement-litigation.ht…

The Enola patent was filed under pretext of it being a new organism produced by selective breeding. The pretext seems to have turned out to be false and the patent was invalidated. The fact it took so long is an atrocity but my point stand - patents for existing plants are not valid. https://patentlyo.com/patent/2009/07/mexican-yellow-bean-patent-finall…

According to the "In re Spansion" case[0], a patent promise is equivalent to a licence. Given that and the MIT licence, I don't see much of any way for MS to abuse patents against .NET users (IANAL). Amusingly, Apple itself was the beneficiary of the ruling. Speaking of Apple, given its history it's not impossible to imagine a closed source "Swift 6" with no backward compatibility, leaving only a very tiny ecosystem for the open source Swift. [0] https://patentlyo.com/patent/2013/01/3rd-circuit-covenant-not-to-sue-i…

Here’s a blurb with the patent numbers. https://patentlyo.com/patent/2020/01/billion-verdict-caltech.html