Fixing the patent system requires a return to strong patent rights

copycat-lightbulb-copy copyThe patent system our government has created over the last decade incentivizes stealing patent rights rather than engaging in an arm length negotiation. This is antithetical to basic, fundamental principles embedded throughout American law. The laws in the United States are supposed to be certain, stable and understandable. By minimizing externalities and keeping transaction costs low bargaining of rights will ensue, which will lead to an efficient outcome.

The theory that law should maximize certainty and minimize transaction costs to facilitate an efficient, arms-length negotiation of rights is called the Coase theorem. The Coase theorem is attributed to Nobel Laureate Ronald Coase, who certainly would not approve of the mess all three branches of government have made of the U.S. patent system over the last decade. Wholesale changes to the law both through statutory changes and case law shifts have created sweeping changes to the underlying property right grant, as well as the overall desirability of obtaining patent protection, which drives innovation under ground as trade secrets and makes it ever more difficult (if not impossible) for individuals and startups to monetize innovation. This will lead to less risk taking because funding will increasingly dry up, which means less innovation – the exact opposite of what politicians say they want.

According to Coase, obstacles to bargaining and/or poorly defined property rights lead to an inefficient marketplace. You need to look no further than the current state of the U.S. patent system for proof. Given that all branches of government – the Legislature, the Executive and the Judiciary – have embarked on a decade long, top-to-bottom restructuring of the patent system it is no great mystery that the patent system in America is inefficient and private, arms-length bargaining between innovators and innovation users simply no longer happens. Patents are weaker, less capable of being enforced, and much more likely to be successfully challenged.

The entire government has essentially thrown out the old patent system that was responsible for revolutionary innovations and replaced it with a system that rewards copyists who ignore innovators and infringe patents without concern or consequence. “We used to have, for the most part in this country, what I’ll call an honor system where companies that were using technologies patented by others willingly took licenses without being forced by court orders to do so,” former Federal Circuit Chief Judge Paul Michel explained. “The honor system now is largely gone… So in the environment where the honor system is gone what really is a patent? It’s a ticket to file a lawsuit.”


Ignoring patent rights is called efficient infringement. It is efficient because patent rights are so weak, it costs so much to enforce patent rights, and those rights are so easy to invalidate, why would a reasonable businessperson do anything other than force patent owners to sue? Those engaging in efficient infringement know that at least some, if not many, innovators simply will not pursue them for infringing because of the cost and climate, which is inhospitable to innovators.

Unfortunately, with no real prospects at a fair, reasonable, arms-length negotiation innovators have little recourse other than suing. So non-existent is the market for fair, arms-length negotiations that without bringing a lawsuit those who use, or steal, the innovations of others simply refuse to deal. Patent owners are forced to either engage in high risk, costly patent litigation, or to simply watch as large entities make mountains of money going to market with an innovation they pioneered. This can’t be what our Founding Fathers envisioned; it wasn’t what President George Washington envisioned when he became America’s first patent licensee.

How did things go so wrong? Why has the Supreme Court declared war on software, biotechnology related innovations and medical diagnostics? Why has the Patent Office tolerated patent examiners who don’t show up for work and refuse to issue patents? Why has Congress created burdensome administrative procedures that make it easier for challengers to kill patent rights without the benefit of a trial in federal court? Why does Congress continue to seek further reforms that will weaken the patent system and make it increasingly impossible for those who innovate to find enough incentives to make innovation worthwhile?

Congress, the Obama Administration and the Courts have been misled. It is axiomatic that patent protection incentivizes innovation and creates jobs. Changing patent law in ways that make it nearly impossible for inventors and start-up companies to pursue innovation will have a substantial negative impact on job creation and the economy. As a result of misguided patent reform and bad judicial decisions a primary foundation of the great American economic engine is unnecessarily crumbling.

Over the past decade, the patent system has been turned on its head and patent rights have eroded year after year (see here and here). Once celebrated, inventors are now vilified. A crafty narrative has emerged.

There is a mistaken belief by some that our national innovation ecosystem is somehow fostered by a regime whereby patent and other intellectual property rights are ignored. Of course, to argue that patents get in the way of innovation is absurd. (See here, here, here, here and here) There is no evidence that can withstand even first level scrutiny that suggests patents inhibit innovation. Indeed, if patents get in the way of innovation you would expect countries without a functioning patent system, or weak patent rights, to flourish. What you see is exactly the opposite. Where there are little or no patent rights available there is little or no innovation, and truly little or no functioning economy. Such a reality is hardly surprising given the cost of innovation and the reality that it makes absolutely no business sense to invest in innovating if another can simply take your research and development without consequence. “At the end of the day if you do not own the exclusive rights to the problems you are solving you are going to get copied at an astronomical rate,” explains Jay Walker, a prolific inventor and the founder of “If we can’t own the solution to the problem the last thing I want to do is invest in the solution.”

Without patent rights the free-rider problem is very real. The free rider will always succeed ahead of the pioneer because the free rider can charge less given they didn’t have to invest to innovate. We see this free-rider problem already. With few exceptions large corporations do not innovate, rather they take innovation from others. Sometimes they take innovation legally by acquiring innovative start-up companies, but increasingly given the patent climate in the United States they simply ignore patent rights and do as they please. They are bigger than the companies that innovate; they have access to the streams of commerce.

What can a small innovative company or independent inventor do when a large corporation steals their innovation out from under them? Nothing really. Unless this is fixed pretty soon there will be less innovation to steal because individuals and those small innovative start-ups won’t be able to get funding, which means they won’t be able to innovate in the first place. Making it harder for individuals and start-ups will lead to less innovation because large companies, with only a few exceptions, simply do not innovate.

The false narrative that patents harm innovation has taken root and is grounded on an erroneous definition of innovation. Innovation is doing something new. Through great effort and as the result of winning the linguistic battle, giant corporations have convinced lawmakers that innovation is not about doing something that has never been done before, but instead these copyists argue that innovation is about whether they themselves are able to sell a product that they have never before manufactured or sold. The fact that the product is new to them does not mean the product exhibits even a smidgeon of innovation. In fact, in many cases these allegedly new products are nearly identical to other products and offerings already in the marketplace. Simply stated: It is not innovative to offer something that already exists. This self-evident truth has been lost on, or flat out ignored by, Legislators and Judges.

Patents fulfill their role when they are strong and require those who seek to take a product or service to market to either reward the original innovator, or to engineer around the patent. When patents are weak there is no incentive to engineer around, and likewise no incentive to deal with the original innovator. Thus, a weak patent system guarantees lethargic, nearly static levels of innovation. If we want innovation to leap forward rather than crawl at a snail’s pace a functioning patent system that provides strong patent rights is absolutely required.

Despite what the critics will argue, there is no historical evidence to prove that weak patent rights lead to greater innovation. Absent even a scintilla of evidence that weak patent rights foster innovation those advocating for a weakening of the patent system and the patent grant should be forced to carry a heavy burden. Instead many policy makers and Judges, particularly Supreme Court Judges, seem to place the burden on innovators as if the patent system has had nothing to do with America’s innovative successes.

Samuel Clemens, better known as Mark Twain was an inventor and patent owner. Twain believed strongly in the value of the patent system. In his book, A Connecticut Yankee in King Arthur’s Court, Hank Morgan, the Connecticut Yankee, said “…the very first official thing I did in my administration-and it was on the very first day of it too-was to start a patent office; for I knew that a country without a patent office and good patent laws was just a crab and couldn’t travel anyway but sideways and backwards.” There is historical precedent to back up what Twain writes. In his first State of the Union speech President George Washington implored Congress to enact Patent Laws, which they did as the third Act of Congress. Abraham Lincoln also recognized the importance of a strong patent system, saying that the U.S. patent system was one of the three greatest innovations of all-time. Again, if you disagree with Washington, Lincoln, and Twain shouldn’t your assertions be viewed suspiciously?


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38 comments so far.

  • [Avatar for Anon]
    September 23, 2015 07:00 am

    Well said Eric,

    Fundamental principles, such as any component in hardware can be emulated in software and any software can be built into hardware lead to the inescapable conclusion that anti-software patent arguments are nothing more than anti-patent arguments.

  • [Avatar for Eric Berend]
    Eric Berend
    September 22, 2015 08:36 am

    @ # 2. : Mr. Martin, your comment displays a certain myopia when regarding physical (e.g., mechanical/EE) innovation and invention that is unfortunately, all too common with software-centric types of persons. May I suggest you consider well, the inevitable balkanization this implies? “We (who favor a strong patent law regime that protects property rights) must hang together, or most assuredly we shall be hanged separately”, in this present heavily manipulated milieu.

    “post-Internet”? Really? What does that have to do, fundamentally, with mechanical or electrical devices or apparatus’ utility and functionality; and, the potential and actual “quid pro quo” value of said utility to society at large?

    The propensity for software-myopic advocates to obdurately ignore the destructive effects of their stances and initiatives upon U.S. patent rights of other types of inventions, is appalling; and serves no-one who favors a strong patent regime on whatever basis, in its inherent divisiveness.

    This very attitude of factionalism has already wrought enormous harm to the U.S. patent laws, in the Leahy-AIA and so forth: those initiatives had gone nowhere for many years, legislatively, until “big pharma” threw its weight behind the so-called ‘reform’ efforts.

    But now that “big pharma” itself, has now become “hoist on its own petard”, witness the current blatant attempts to carve out exemptions for the selfsame “big pharma” to try to advance various proposed legislation (2015); it is thus painfully obvious whose interest, yet again, gets thrown to the sharks: mechanical and EE inventors.

  • [Avatar for step back]
    step back
    September 18, 2015 07:51 am

    wrong link
    don’t know how that happened

  • [Avatar for step back]
    step back
    September 18, 2015 07:49 am

    Night Writer at #29:

    Right you are that this Alice paragraph is the key turning moment which opens the passageway down into the rabbit hole. The Mount Olympus 9 are schooling us on how real “science” works. Let us all bow in awe to their eureka moment insight.

  • [Avatar for Anon]
    September 17, 2015 11:20 pm

    “might” is future prospective, and again, ===>> advisory opinion – this is expressly not allowed by our Constitution, and any such “ruling” by the Supreme Court has no force of law.

    I would love to see a District Court (hint, Judge Posner) take this bit of reality and force the issue.

  • [Avatar for Curious]
    September 17, 2015 10:58 pm

    might tend
    That was the quote I was fishing for. I came across it the other day. There is no citation in Mayo for this finding. Actually, it really isn’t a finding so much as wishy-washy speculation. SCOTUS (or a law clerk) knew better than to make a it a blanket statement, so they added the qualifiers of “might tend.”

    That being said, this qualified “finding” is the linchpin to their argument that these patents impede invention more than promote it. This is the the emperor[s] has no clothes moment with their bits hanging in the wind (I believe Jon Stewart authored a book with that visual). I see it all the time at the USPTO — the MSU approach to the law/facts (MSU = make s&%t up), but it really saddens me to see SCOTUS employ it.

  • [Avatar for Anon]
    September 17, 2015 10:42 pm

    Which one paragraph? Is the paragraph citing the constitution directly or is it using it as a crutch to discuss the statute?

    The answer to that question makes a huge difference. As I said, it is a fair argument to say that all US law can be traced back to the constitution – and yet nearly every law judged by courts (and yes, even the Court) does NOT re-write the constitution and reallocate authority for statutory law.

    I other words, Alicejust was not a constitutional law case, and no amount of post hoc “theorizing” can make it so**
    Not even such posturing by the Supreme Court itself – one must, absolutely must, remember the difference between dicta and holding. Judge Rich knew the law as written by Congress in 1952, since in very real fashion, he helped write that law. It is from that position of strength that he was rightfully able to reject the manipulation by the Supremes. It is exactly that type of fortitude that we need now. Not this namby pamby “well, it’s a done deal” defeatism.

    **unless you want to discuss a different aspect of constitutional law, that is, constitutional doctrines such as separation of powers being violated, but that is not really about the merits of the Alice case, now is it?

  • [Avatar for Night Writer]
    Night Writer
    September 17, 2015 05:57 pm

    What is interesting is that each time a district judge invokes Alice he/she is implicitly going back to that one paragraph in Alice for the justification for using Alice. It is very wrong. But–like it or not—the SCOTUS did making findings of fact and did hold that an invention that is “abstract” is UNCONSTITUTIONAL.

    You may be right that all of this is not in accord with the Constitution, but like it or lump it, that is what the SCOTUS did.

  • [Avatar for Anon]
    September 17, 2015 05:50 pm

    might tend… may…” ===>>> advisory opinion on a subjective, FUTURE possibility.

    This has no force of law, let alone one anchored in ANY finding of fact (you cannot find facts from the future), and the tie (any tie) to the constitution is ONLY tied back to the branch of the government authorized to write statutory law.

    These are fundamental and inescapable items that should be front and center here. Night Writer, refresh your understanding of what a holding means. The Court has NO authority (under any version of the constitution) to write statutory law with what you are (incorrectly) calling “holdings.”

  • [Avatar for Night Writer]
    Night Writer
    September 17, 2015 04:30 pm

    Laws of nature, natural phenomena, and abstract ideas are “`”the basic tools of scientific and technological work.”‘” Myriad, supra, at ___, 133 S.Ct., at 2116. “[M]onopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it,” thereby thwarting the primary object of the patent laws. Mayo, supra, at ___, 132 S.Ct., at 1923; see U.S. Const., Art. I, § 8, cl. 8 (Congress “shall have Power … To promote the Progress of Science and useful Arts”).

    That is from Alice. That is about as good as it will ever get. The SCOTUS just said Alice is based on the SCOTUS’s finding of fact that the judicial exceptions tend to impede progress and thus are at odds with “to promote.” They just held that Alice is based on the Constitutional purpose of patents.

    Not sure what you guys don’t get about this. We aren’t climbing out of the rabbit hole by a new law.

  • [Avatar for step back]
    step back
    September 17, 2015 01:50 pm

    Anon at #24,

    As you know, usually I agree with most everything you say.
    However we need to keep these comments in line with the facts.

    I am not a Constitutional law scholar, but as I understand, patent law is based on the “useful” arts portion and the “discoveries” portion of Article I, sect. 8, clause 8:

    To promote the Progress of Science and **useful Arts**, by securing for limited Times to Authors and Inventors the exclusive Right to their **respective** Writings and **Discoveries**. (asterisks added)

    Apparently, when the Constitution was written the founding fathers assumed that all writings of any worth would be directed to the Sciences and thus that portion aligns respectively with “authors” and their “writings” and gives us the basis for our modern day copyright laws.

    Taking guidance from the **useful Arts** part of the IP clause, Congress included the term “useful” in 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.

    Therefore there is the Constitution-based element of usefulness in 101.

    On the other hand, 35 USC 101 does not authorize any tribunal (even the Mt. Olympus 9) to dissect a claim and to determine what it is “directed to”. Rather 35 USC 112 says that it is up to the applicant to define that which he regards as his invention:

    The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter **which the inventor or a joint inventor regards*** as the invention.

    The Mt. Olympus 9 are clearly violating this law.
    And yes you are correct. They are not above the law.

  • [Avatar for Anon]
    September 17, 2015 01:37 pm

    Night Writer,

    May I suggest that you think about the difference between a direct constitutional issue and one that merely relates back to the constitution.

    After all, it is not a stretch to say that ALL US laws relate back to the constitution.

    There certainly are times where hyperbole is warranted or effective. This is not one of those times.

  • [Avatar for Curious]
    September 17, 2015 12:27 pm

    Well, we are going to have to disagree. I don’t have time to research this further, but the SCOTUS did create the judicial exceptions based on the Constitution and then used them in Alice.
    For your edification (and the for the rest of us as well), I suggest you find these passages and share them with us. From my recollection of Benson, the Constitution was not mentioned. Debating an issue upon what you think the Supreme Court has grounded their decision on is not as satisfying as debating the issue using direct quotes from Supreme Court decisions.

  • [Avatar for Night Writer]
    Night Writer
    September 17, 2015 10:25 am

    Well, we are going to have to disagree. I don’t have time to research this further, but the SCOTUS did create the judicial exceptions based on the Constitution and then used them in Alice.

    It is just like they do with the right to privacy. Interestingly, Robert Bork in his confirmation hearings (no link but they are up on youtube) discussed this issue. He said that when the SCOTUS creates things like a right to privacy that have no textual basis in the Constitution that they take on a life of their own after that. He said there is no constraint on their use because of the way they have been created by the SCOTUS. Here, the same thing is happening. The judicial exceptions are treated as if they were text in the Constitution. And, you note that the judicial exceptions are just cited by the SCOTUS as if they were text out of the Constitution.

    I am pretty sure even if the Congress wrote a law that said, “the judicial exceptions are hereby not applicable to new 101 and Alice is expressly overturned” that the SCOTUS would pay no attention. The SCOTUS has said in previous cases that the judicial exceptions ARE Constitutional issues.

    But, anyway, we will have to disagree on this. I am sure we are in the rabbit hole until the SCOTUS takes us out of it. Ask yourself what would it take for a DJ not to be able to use Alice?

  • [Avatar for Anon]
    September 17, 2015 09:55 am

    Night Writer,

    It is as I say. I have some not small experience in constitutional law, and I have done research into the overturning of Supreme Court decisions and it happens far more than most people realize.

    I do not see the passage in Alice that makes this a direct Article I Section 8 issue. Thus, there was NO constitutional issue before the Court, NO constitutional issue was briefed, and NO constitutional issue was decided.

    You are aware of course that Court dicta remains just that: dicta. Such is exactly why Judge Rich was able to push forward the law as written by Congress in the wake of Benson and Flook which resulted in Chakrabarty and Diehr.

    Do not buy into the “oh well, it’s done” Kool-Aid.

  • [Avatar for Night Writer]
    Night Writer
    September 17, 2015 09:48 am

    Anon, I don’t think so. I think a Constitutional scholar who reads this blog could help us out. I think Alice cannot be fixed with legislation. The SCOTUS have said it is a Constitutional issue so it is not legislative interpretation. That means no legislation can fix Alice. But, any Constitutional scholars want to help us out?

  • [Avatar for Anon]
    September 17, 2015 08:44 am

    Night Writer,

    Legislation can, has, and will fix Supreme Court decisions – this is but one of the paths that Supreme Court decisions have been fixed hundreds of times.

    There is no “pretending” on this point.

    I think that you want to speak to a different point though. I think that you want to speak to the point that the Supreme Court will take whatever legislation is passed and (once again) bend that legislation to their own agenda (viewpoint/philosophy).

    There is one path, and one path only, to prevent that: jurisdiction stripping.

    It is unquestionable that the path of jurisdiction stripping is afforded Congress under the US Constitution. Patent appeals are NOT a matter of original jurisdiction for the Supreme Court, and thus are an item that can be stripped from the Supreme Court.

    If this path were taken, then – and only then – would the Supreme Court be faced with a DIRECT constitutional question, and then we would see the advisory nature of their “logic” forced to the surface.

    You too, to be perfectly blunt, are wrong on the fait accompli attitude that you are adopting. The Court is banking on exceptions to statute in its direct path. That is entirely remedial by statute.

  • [Avatar for Night Writer]
    Night Writer
    September 17, 2015 07:43 am

    >People pretending that an insurmountable barrier has been erected or that there is no chance short of revolution of fixing things are not a part of the solution going forward.

    Anon, people pretending that legislation will fix Alice are not helping either. The fact is that the SCOTUS thinks that “abstract” is a Constitutional issue so it is. Alice is as much a problem as Citizens United. We can’t fix it with legislation. Being in denial about this isn’t going to help.

  • [Avatar for Anon]
    September 17, 2015 07:30 am


    The judicial branch is NOT in fact above the law. We as attorneys do not swear in our oaths to fealty to the what the judicial branch says is the law.

    In direct language then, you are wrong.

    Yes, the Court can – and does – make decisions that violate the law. Those decisions are NOT like constitutional amendments though, and the Court has had its decisions changed in a number of paths short of constitutional amendments literally hundreds of times over the last few decades.

    People pretending that an insurmountable barrier has been erected or that there is no chance short of revolution of fixing things are not a part of the solution going forward.

  • [Avatar for Anon]
    September 17, 2015 06:37 am

    In any event, we need not labor to delimit the precise contours of the “abstract ideas” category in this case.

    Further, the Court is not basing their decision on Constitutional principles per se and as such. Instead they base their decision on the exceptions to 101 supported by their view of the Constitutional clause. The very same clause which they themselves violate because that clause is a designation of power to a particular branch to write law, and the separation of powers clause prevents the judiciary from usurping that role.

  • [Avatar for step back]
    step back
    September 16, 2015 04:57 pm

    ARP at #15,


    It’s called the Dunning–Kruger effect.

    From Wikipedia: “a cognitive bias wherein relatively unskilled individuals suffer from illusory superiority, mistakenly assessing their ability to be much higher than is accurate”.

    And when you have a “Supreme” in your name, why not?

  • [Avatar for A Rational Person]
    A Rational Person
    September 16, 2015 04:03 pm

    step [email protected],

    You left out the justices deciding, unanimously, in Mayo that the two “wherein” clauses constitute a “wherein” step. From Mayo:

    What else is there in the claims before us? The process that each claim recites tells doctors interested in the subject about the correlations that the researchers discovered. In doing so, it recites an “administering” step, a “determining” step, and a “wherein” step. These additional steps are not themselves natural laws but neither are they sufficient to transform the nature of the claim.

    Not only was the so-called “wherein” step not a natural law it was not even a step!

    So it appears that based on the holding of Mayo, that two “wherein” clauses = one “wherein” step?

    The degree of incompetence exhibited by the Supreme Court in interpreting patent claims is truly amazing; they couldn’t even determine what was and what was not a method step in the claim at issue.

  • [Avatar for David]
    September 16, 2015 03:22 pm

    On the con law issue: given that the CAFC has identified the claim of patent validity as an administrative one (a “public right”), the claim may, should Congress decide to do so, be removed entirely from the Article III courts. The DOJ, on the behalf of the USPTO, has said repeatedly as much in briefing before the 4th Circuit and CAFC. Perhaps you find your solution to Alice there, but the PTAB becomes the de facto SCOTUS for the purposes of patent validity.

  • [Avatar for step back]
    step back
    September 16, 2015 02:48 pm

    ARP at #13,

    I forget at the moment which learned Justice of the past recognized this, but SCOTUS has no army, SCOTUS has no police force of its own. SCOTUS has only the hot air emanating from the mouths of its Justices and the respect or disrespect which said hot air garnishes.

    So if SCOTUS continues to spout nonsense and loses the respect of the people, it will lose the only power that it has, the reason and logic behind its proclamations.

    When it comes to Alice, Myriad, Mayo, I personally have a very low opinion of SCOTUS. They are dabbling and babbling in areas where they have less than zero competence in the associated subject matter.

    A chemical molecule is not like a plucked leaf versus a lathed tree trunk.

    There are no such things as laws “of nature” (even though the term is used in popular literature –what do poets know?) and especially ones defining the reaction of each unique human being (unique DNA) to dosages of a given pharmaceutical.

    And there is no coffee shop in Silicon Valley where one can find a flock of java-sipping nerds to toss one’s abstract “idea” at and say “make it so over the weekend” and lo it becometh so. Our justices are sipping something alright. It ain’t reality juice.

  • [Avatar for A Rational Person]
    A Rational Person
    September 16, 2015 10:54 am

    An important thing to keep in mind with respect to any law, be it a patent law or any other type of law are the following two definitions:

    The definition of a “constitutional” law or application of a law: Whatever a majority of Supreme Court justices decide it is.

    The definition of “unconstitutional” law or application of a law: Whatever a majority of Supreme Court justices decide it is.

    Any other view of the definitions of these terms is, in my opinion, naïve. For example, see the decisions in Kelo and Citizens United, two of the most outrageous decisions of the last decade or so.

    Kelo turned the 5th Amendment on its head to enable the government to transfer private property from one private entity to another private entity, virtually at will.

    The decision in Citizens United was based in the majority opinion on the following delusional reasoning:

    “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

  • [Avatar for Curious]
    September 16, 2015 10:07 am

    You know what the SCOTUS did in Alice is very similar to the “right of privacy”.
    Entirely different. The concept of a “right of privacy” was a right based upon an interpretation of the Constitution by SCOTUS. This is very different than SCOTUS finding certain technology (claimed in a certain manner) does not promote the progress of science and the useful arts.

    The first involves SCOTUS interpreting the Constitution (their job) — the second involves factual findings regarding the cause and effect of patents directed to so-called “abstract ideas” and whether or not these patents hindered or promoted the progress of science and the useful arts. The problem faced by the pro-patent side is that patents, on their face are anti-competitive, and I believe most Federal judges are very sensitive, by training and disposition, to anti-competitive behavior. This constitutes an automatic strike against patents. Most of these judges (SCOTUS included) are not equipped to appreciate the other side of the ledger — which is how patents promote the progress of science and the useful arts. Many (most?) judges don’t have outside experience with inventors/companies that do research and employ patents. They don’t understand how the ability to obtain a patent impels discoveries and inventions that just wouldn’t happen without patents. Thus, the judges see the bad without seeing the good. Consequently, they don’t weigh the good against the bad so as to arrive at the same conclusion that our Founding Father’s arrived at — patents promote the progress of science and the useful arts.

    This is why the history of US patent law evidences a continuous and inherent judicial bias against patents that has only been corrected by the intervention of Congress. Ever since Congress enacted the Patent Act of 1952 (which overruled many anti-patent decisions by SCOTUS), the courts have been continually eroding the value of patents.

  • [Avatar for Night Writer]
    Night Writer
    September 16, 2015 09:52 am

    Well curious there are plenty of Constitutional scholars that read this blog. Maybe one of them can chime in. The rule is, though, that Congress can’t pass legislation to remove the “exceptions” that the SCOTUS has decided exist based on the Constitution. You can say it is unfair and ridiculous, but it isn’t going to change the reality.

    We are in the rabbit hole for life.

  • [Avatar for Curious]
    September 16, 2015 09:36 am

    Finally, if the Royal Nine believe that their nonsensical Alice test is a constitutional requirement based on the Patent Clause, then Our Judicial Mount Olympus is truly delusional and has grossly overreached its constitutional authority.
    I’ve made this point once before in a different forum, but I believe that even if the patent clause never existed, Congress still has the right, under the Commerce Clause, to institute a patent system.

    Regardless, any assertion by SCOTUS that ‘such and such’ patent doesn’t promote the progress of science and the useful arts must necessarily be based upon findings that SCOTUS isn’t equipped to make. What I also find interesting is the Patent clause refers to both science and the useful arts, which I believe should be interpreted as being different. Moreover, if we were interpret the term “science” given its meaning at the time of the writing of the Constitution, then this would encompass many of the things that SCOTUS has deemed to be exceptions to statutory subject matter. Thus, I believe that the rewriting of 35 USC 101 by SCOTUS (let’s be realistic, their “exceptions” are nothing more than a rewriting of the statute) is inconsistent with the intent of the Constitution.

    tell me what legislation could overrule Alice? I can answer the question: none. It doesn’t not matter what 101 looks like Alice is still good law.
    I can do it in just two words. Rewrite 101 as follows:

    Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain, without exception, a patent therefor, subject to the conditions and requirements of this title.

  • [Avatar for Night Writer]
    Night Writer
    September 16, 2015 09:26 am

    >no such finding has been made

    I am afraid Curious that the SCOTUS has implicitly made this finding of fact. You know what the SCOTUS did in Alice is very similar to the “right of privacy”. And Alice is an example of SCOTUS cases that enable a DJ to pretend to be applying the law when they are really invoking equity.

    Again, someone tell me legislation that Congress could pass that would overrule Alice? I think if you read the case law you will realize there is nothing Congress can do short of extreme measures.

    We are in the Alice rabbit hole for life (unless the SCOTUS comes out which seem very unlikely at this point.)

    I am very unhappy about this. But that is the way it is.

  • [Avatar for Curious]
    September 16, 2015 09:16 am

    The basis if Alice is claimed by the SCOTUS to be the Constitution and specifically “promote” coupled with a finding of fact by the SCOTUS that abstract patents do not “promote.”
    Finding of fact? As far as I know, no such finding has been made, and even if it was made, it wouldn’t have been made by SCOTUS. SCOTUS is a reviewing court — not a court of first instance. It isn’t the job of SCOTUS (or the Federal Circuit) to make findings of fact. Rather, it is the job of Congress to hold hearings to gather the facts and act accordingly.

  • [Avatar for Night Writer]
    Night Writer
    September 16, 2015 08:19 am


    I wish you were right. But, the SCOTUS did say that no abstract invention is patentable and Alice is the test for whether it is abstract. And, the SCOTUS tied this to the Constitution.

    Nothing you said changes this. And nothing Congress can do short of extreme measures can change it either.

    It is horrifying.

    To your points: doesn’t matter that they didn’t define abstract. They came up with a test DJ can use. I don’t want to ues the reasoning Anon. The SCOTUS has pretty clearly said: (1) No abstract inventions. (2) Alice is the test for abstract. (3) Abstract inventions are not allowed because of the Constitution. That is it. We are done. We are never coming out of Alice without the SCOTUS taking out of the rabbit hole.

    If you don’t believe that, tell me what legislation could overrule Alice? I can answer the question: none. It doesn’t not matter what 101 looks like Alice is still good law.

    It is horrible.

  • [Avatar for step back]
    step back
    September 16, 2015 08:18 am

    EG at #3,

    There is nothing wrong with SCOTUS saying that abstract ideas of the non-useful kind cannot of themselves (per se) be patented because 35 USC 101 only mentions “new and useful” and thus leaves as ambiguous its position on useless abstract ideas that of themselves have no utility.

    However the instant where SCOTUS starts talking about what a claim is “directed to” and how unscrupulous patent “draftsmen” are trying to pull a climategate ‘trick” over them is where the wheels leave the track and our train starts floating off into fantasy Blunderland.

    There is nothing in 101 that authorizes a tribunal to determine what a claim is “directed to”.

    There is nothing in section 112 that authorizes a tribunal to ignore any of the words in a claim and decide for themselves that the claim has a compass “direction” and that said compass direction is pointing towards Abstractland (Alicestan).

    Of course those who study “science” can see plain as the noses on their faces that SCOTUS doesn’t do science. I’m not sure if they (SCOTUS) have even caught up up to Medieval alchemy. Certainly they are on a witch hunt after all those evil inventors who are trying to confuse them with the facts. Who needs facts when there is “Supreme” in your title? Who needs criticism when you are surrounded by “friends” of the court?

    What is shocking is that so many here who are apparently literate cannot read the words of the US Constitution and see how it is being violated.

  • [Avatar for Anon]
    September 16, 2015 08:09 am

    You have a problem and a major limitation to your view, Night Writer.

    The Supreme Court may not render advisory opinions.

    Look at the reasoning that you (and the Court) want to use: you want to say that “X” invention is not allowed because it “may” block some future progress, or promotion.

    That the Supreme Court wants to scribe their reasoning as some sort of Constitutional mandate only shows that their own scrivening prowess is rather abysmal (and yet another reason why they should not be legislating from the bench).

    (further, to what EG point out, and the opposite of your last sentence, Alice expressly declines to define what “abstract” is – that is yet another important point to keep in mind, as I have pointed out that the “void for vagueness” doctrine can and does apply beyond merely criminal law)

  • [Avatar for Night Writer]
    Night Writer
    September 16, 2015 07:49 am


    I wish you were right, but I am pretty sure that even if Congress repealed the 1952 Act and wrote another patent act that Alice would be good law. It is based on the claim by the SCOTUS that these three things including abstract things are never patentable because they don’t “promote.”

    It is a shocking to realize this. But, Alice will never die. We are likely stuck for our live times with Alice. Tell me if you disagree what legislation would overrule Alice? I guess Congress could remove jurisdiction from the SCOTUS. That would do it or we could amend the Constitution.

    But, just like privacy, the SCOTUS have effectively amended the Constitution to say that patents can’t be for “abstract” things and Alice defines what abstract is.

  • [Avatar for EG]
    September 16, 2015 07:04 am


    I would find it hard to believe that Alice can’t be changed by Congress. First, Alice never defines what “abstract idea” means, so how can Congress be forbidden from defining that therm.

    Second, nothing in Alice says that it’s “made up” view that there are “exceptions” in 35 USC 101 as to what is or is not patent-eligible is a “constitutional requirement.”

    Finally, if the Royal Nine believe that their nonsensical Alice test is a constitutional requirement based on the Patent Clause, then Our Judicial Mount Olympus is truly delusional and has grossly overreached its constitutional authority. As much as the Royal Nine might believe in their dreams that malarkey (as witnessed by the mind-boggling dicta in Graham which has no basis in relevant constitutional fact), the Patent Clause is the province of Congress, no them.

  • [Avatar for Night Writer]
    Night Writer
    September 16, 2015 06:33 am

    It was pointed out on another blog that Alice probably can’t be changed by Congress. The basis if Alice is claimed by the SCOTUS to be the Constitution and specifically “promote” coupled with a finding of fact by the SCOTUS that abstract patents do not “promote.” So, the rule is that Congress can change statutory interpretation but cannot change a holding that is supposedly based on Constitutional interpretation.

    What’s that mean? That Alice is with us until the SCOTUS gets rid of it. So, effectively the SCOTUS has effectively crippled the patent system and there is nothing we can do about it.

  • [Avatar for Michael F. Martin]
    Michael F. Martin
    September 15, 2015 08:00 pm

    Much of this is true, but does not get at the root cause of the problems we are having with our patent system right now. Lowering transactions costs by strengthening property rights only helps remove friction from the reallocation of rights and obligations that a party and counterparty (i.e., licensor and licensee, or assignor and assignee) seek to achieve. Removing friction does not and would not create a motive force for that reallocation to occur where none existed. An accused infringer who has received no benefit from the patent she is accused of infringing is not going to want to pay for a patent license no matter how cheap and easy that is for her to do. Nobody likes to be accused of stealing, especially when nothing was stolen! A patent infringement claim is not an accusation of theft; it’s a strict liability offense based on a claim staked through filing of paperwork.

    What Washington, Lincoln, and Twain all believed is that it was worth putting up with strict liability because it was so hard to prove theft. If you don’t think patent rights are clear enough or strong enough, try trade secret misappropriation claims for a change! This was a reasonable belief at a time when the public looked to issued patents as a source of information about the state of the art. When Scientific American magazine published abstracts of patent and sold copies of specifications by mail, the quid pro quo of the patent system was obvious and tangible to everybody, including the accused infringers.

    I believe the root cause of the problems for the patent system is that the quid pro quo is broken. What now, in our day, does the public get in exchange for the exclusive rights granted to the original innovator? How today does the knowledge manifest in a patent application filing advance the state of the art? There are answers to these questions, but they are neither as obvious nor as tangible as the answers were 100 years ago. Even in the case of pharmaceutical patents, often held out as the strongest case for the patent system, the quid pro quo is driven partly by the need to compensate the original innovator for the costs of FDA approval.

    So while it’s true that patent rights could be stronger and the patent system more efficient, while it’s true that there is low hanging fruit that could help make that happen right now, it is unlikely that any of that fruit is going to be picked so long as people — especially people who are not patent lawyers — are not convinced that they are getting something for the hassle of it all. That is the problem that needs to be solved: What is the quid pro quo for patents in a post-Internet, globalized society?

  • [Avatar for step back]
    step back
    September 15, 2015 01:12 pm

    “The false narrative that patents harm innovation has taken root and is grounded on an erroneous definition of innovation. Innovation is doing something new.”


    I respectfully submit that you’re above definition is not accurate.

    Invention and innovation are not the same thing.

    “Innovation” is constituted by convincing a bunch of people (e.g. consumers) that you are currently bringing to them (e.g. now selling to them) something brand new even if it’s the same old same old.

    “Invention” of the patentable kind is constituted by informing those skilled in the art of something novel, nonobvious and useful where the informing must be enabling. You do not have to actualize the subject matter of the invention.

    Patents DO inhibit “innovation” because they block copycats from doing as stated in the above (my) definition for “innovation”.