Inconvenient Truth: America no longer fuels the fire of creative genius with the patent system

From left to right: Chief Judge Michel, Scott Kieff, Mark Lemley, Dan Schneider and Deanna Tanner Okun.

Yesterday, at the Newseum in Washington, DC, the annual LeadershIP conference was held to discuss patent and antitrust p Typically, the annual LeadershIP conference is held to discuss advanced IP policy issues from an empirical perspective. This year, however, with a new administration in the White House, the focus of the event was on policy advice that would be appropriate for the new Administration.

The event opened with a keynote address from Judge Paul Michel, retired Chief Judge of the United States Court of Appeals for the Federal Circuit. See Taking stock of the health of the American patent system. Judge Michel also moderated the first panel of the day, which addressed IP policy in the Trump Administration, with panelists F. Scott Kieff (Commissioner on the International Trade Commission), Professor Mark Lemley (Stanford Law School), Dan Schneider (Executive Director of the American Conservative Union) and Deanna Tanner Okun (Partner, Adduci, Mastriani & Schaumberg, and Former Chair of the ITC).

Kieff began the panel conversation with his opening thoughts, explaining that if we shift our thinking, our frame of mind as it relates to intellectual property, we can have a large benefit for a very low cost. “If we try very hard to provide direct incentives to inventors to invent or investors to invest… we are going to have to have an immense amount of information,” Kieff explained. Conversely, if government were to get be involved only to the extent of settling the law and allowing private parties the certainty to contract, then little or no information is necessary about the motivations of the parties because everyone will be free to act according to their own preferences.

Likening patent rights to a flashlight being held in a dark room, Kieff explained that if a property right such as a patent can be like a beacon in the dark, which can be found by those who are similarly interested in that asset, then the government does not require massive amounts of data, or to know what is motivating each person. When the benefit is indirect and left to the parties to figure out, the government need only set rules so that those interested in the asset can contract accordingly in an environment of certainty and stability.

Kieff is correct, but unfortunately, the law as it relates to patents is anything but stable or certain, and the government on every level – Judicial, Executive and Legislative branches – has gotten in the way of the private sector achieving private negotiated administration of property rights. See Fixing the patent system (discussing the Coase theorem).

Schneider began his remarks with the Declaration of Independence: “We hold these truths to be self evident, these are powerful, poetic words,” Schneider stated. “Some of my Libertarian friends forget that the government was created to protect our inalienable rights.”

Schneider stated that he began with the Declaration of Independence to drive home the point that these questions are political questions in their nature.

“We’ve polled our CPAC attendees on intellectual property. 13% of attendees did not have an opinion,” Schneider explained. “Of those who did respond, almost 95% of Conservatives believe intellectual property rights should be strengthened. Only 5% thought they were too strong and should be weakened.” Schneider would go on to explain that there is a deeply held belief among Conservatives that property simply should not be taken away by the government without proper recourse. “The thing that most grass roots Conservatives care about is that people don’t trespass on their property,” Schneider explained. “There is this visceral reaction to people taking their stuff without recourse.”

We can argue, perhaps, whether patents are being taken away without proper recourse, but when so few procedural rights are afforded to patent owners at the Patent Trial and Appeal Board, and speed is exalted above all else, including fairness, very real questions are legitimately raised about whether due process of any significant kind is afforded to patent owners in administrative proceedings at the PTAB. What cannot be debated with any sincerity, however, is whether a patent is a property right, although some still do. The statute is clear: “patents shall have the attributes of personal property.” See 35 U.S.C. 261. So too are a long line of Supreme Court cases that equate patents to property rights in land.

The first controversial statement from the panel came from Lemley, who said that if you look at decades of data, the fundamentals of the patent system have been moving along status quo regardless of changes to patent law. Lemley’s point was that patents continue to be applied for and continue to issue in record numbers.

Of course, as much of what Professor Lemley says, the statistics he chooses paint only a partial, and biased picture. Yes, patents continue to be applied for, and patents continue to issue, but in some segments it is practically impossible to obtain patent protection in the U.S., and those segments are areas where the U.S. has historically had a significant technological advantage; namely in software and biotechnology.

The United States Chamber of Commerce has also removed the U.S. as the top jurisdiction in the world in terms of patent protection. The 2017 Chamber report explains:

[T]he patenting environment in the U.S. has continued to be plagued by uncertainty. In fact, digging a bit deeper into the Index results and looking at the results for Category 1: Patents, Related Rights, and Limitations, the U.S. falls from 1st to 10th behind most European economies included in the Index as well as Singapore and Japan.

This doesn’t sound particularly like the fundamentals of the patent system are strong, or moving along just fine, despite what Professor Lemley concludes. The reality is Judge Michel is perfectly correct when he says the American patent system is in crisis, and anyone and everyone who is involved in the industry on a day-to-day basis who is exercising independent, rational, objective thought understands that to be perfectly true. The American patent system is in crisis.

As the discussion of the panel proceeded, it did not take long for yet another controversial, and inaccurate statement, to be made by Professor Lemley. Lemley took issue with patents being described as a property right, saying that discussing intellectual property (i.e., patents), as a property right is a complicated matter because some aspects of the right fit some parts of a property rights regime. Although he didn’t say it, the necessary implication is that there are some aspects (left unidentified) that do not fit with a property rights regime.

The problem with patent law, according to Lemely, is that there is no independent invention defense. The problem with not having an independent invention defense, according to Lemely, is that people who invent themselves couldn’t possibly find out about what others have invented because these inventions lay in unpublished patent applications at the Patent Office. “You have people who genuinely tried not to infringe,” Lemley said.

And there was the false statement. Kieff merely responded: “And so it begins.”

Of course, the problem with Lemley’s argument is it is simply untrue and built entirely on a false premise. If you believe those who infringe genuinely are trying not to infringe you might be tempted to believe Lemley, but when you build an argument on something that is provably false, the entire argument tumbles like a house of cards.

In fact, those who infringe do nothing of the sort. In many major corporations patent searches are simply not done, and in fact reading the patents or patent applications of competitors is strictly forbidden. Furthermore, when these infringer companies are notified that they are engaging in activities that infringe the rights of patent owners they do not attempt to engage in licensing talks or any kind of due diligence, which you would expect from those who are genuinely trying not to infringe, as Lemley suggests. Instead, the infringer companies simply throw away the letters they receive. Indeed, in-house corporate attorneys speaking at industry events are practically giddy as they explain that they simply “circular file” letters they receive from patent owners, or laugh when they say that they don’t infringe valid patents.

While Professor Lemley is entitled to his opinion, and he is an excellent and formidable attorney that no one should ever take for granted, he is not entitled to his own facts. Deliberate disdain for patent property is a purposeful business model driving mega-tech IT incumbents. This business model is called “efficient infringement.” Efficient infringement is a cold-hearted business calculation whereby businesses decide it will be cheaper to steal patented technology than to license it and pay a fair royalty to the innovator, which they would do if they were genuinely trying not to infringe as Professor Lemley suggests.

Large entities realize there are a certain number of patent owners that are simply not going to assert their patents for one reason or another, frequently because they don’t have the money to do so. Then there is another group of those that will assert their patents but will not win. The efficient infringement calculation progresses to realize that there is only a small group of those who are likely to assert patents and prevail, thanks to all the hurdles put in place (i.e., patent eligibility challenges, the PTAB, etc.). The calculation further recognizes that even if a patent owner prevails a permanent injunction is virtually impossible to obtain as the result of the Supreme Court’s decision in eBay v. MerchExchange, and damages are likely to be minimal thanks to a continual judicial erosion in damages available to vindicate valid patent rights that have been adjudicated to be infringed.

During the panel Lemley also disagreed with Judge Michel that the patent system is in crisis, noting that the uncertainty to the extent it exists is a patent litigation matter, and patent litigation is only a very small part of the overall system. This allows him to come to the conclusion that changes to the law do not greatly impact the system. According to Lemley, so much of why people get patents relates to considerations other than litigation. Lemley is correct, but he misses the critical point, which is that the value of a patent is tied directly to the likelihood that it could be enforced in litigation. An exclusive right without the ability to be enforced isn’t much of a right, and is worth very little as it turns out. So as patents have become less likely to be patent eligible, and as patents have become so much easier to challenge and therefore much more vulnerable, the entire corpus of issued patents have been dramatically impacted by a series of self-inflicted wounds that have rather stupidly forfeited the American advantage. (For more on patent valuation please see my free webinar on Thursday, March 30, 2017).

The inconvenient truth is America no longer fuels the fire of creative genius with the patent system.

China, on the other hand, is open for business and starting next week both software and business methods will be patent eligible in China. Germany is also open for business, where an injunction is routinely given to victorious patent owners, which as Judge Michel explains, frequently leads to settlements after a verdict. The United Kingdom is also open for business and is the top jurisdiction in the world for patent protection according to the U.S. Chamber of Commerce; tied for first with Switzerland, Sweden, Germany and France. The United States is tied for 10th with Hungary. If that doesn’t put everything into perspective what will?

“There is a presumption somehow that patents are not good; that strong enforceable patents are really just monopolies,” Schneider explained. “If government officials believed patents are good you’d see a different outcome.”

Perhaps there is some reason for hope. According to Deanna Tanner Okun, there is reason to believe that the Trump Administration will be pro-enforcement, which would be good for patent owners.

“Here is someone who believes in enforcement and believes in protecting U.S. rights,” said Tanner Okun, speaking of U.S. Trade Representative nominee Robert Lighthizer. “I look at this and I see opportunity… there is a lot of room for positive things to happen.”

She would later wrap up the panel asking about the message America is sending overseas with our actions at home. She lamented the fact that we are losing sight that the reason we have capital come into the United States is because we have strong intellectual property rights. “What message does it send to economies abroad,” asked Tanner Okun. “If signals coming out of the U.S. are going the wrong way that sends the wrong message.”

Indeed it does.


Warning & Disclaimer: The pages, articles and comments on do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of

Join the Discussion

33 comments so far.

  • [Avatar for step back]
    step back
    March 31, 2017 10:49 am

    Just to be a puppet?
    Striving to be an influential “friend” of the court.
    One who pulls the strings and tells them what to say.

  • [Avatar for Anon]
    March 31, 2017 07:10 am

    Step back,

    That there be some nifty scrivening – are you angling for a judgeship (or a Justiceship)?


  • [Avatar for step back]
    step back
    March 31, 2017 06:58 am

    peter @30:

    For more than 150 years we have held that all patents are equal except that some are more equal than others.

    We must carefully distinguish between the two lest we establish a system that consumes itself.

    We now set forth a new framework for determining whether the rights behind a patent are public property or private property.

    First we determine what the ownership of the patent is directed to. If it is directed to a not big enough to be efficient entity, it is public property free for all men to use in progressing human ingenuity and the common good.

    Second we search carefully looking for an innovative possibility, whether the holder shows promise of being something more, of being soon acquired by an efficient entity. We hold that this new framework and its building blocks are essential to our goal of not thwarting or stifling true and fundamental innovation.

    ; – )

  • [Avatar for peter]
    March 31, 2017 06:22 am

    In 2008 Lemley penned an article “Ignoring Patents”. He said ignoring patents was the way business was done and espoused its use. Of course, ignoring patents is currently known as “efficient infringement”.
    He further ignored established law and proffered that patent rights should not be considered property rights- Lemley exhibiting that he was both devoid of ethics and disdainful of established law.
    However, Lemley admitted this was an ideal world. Yet, in 2015 the CAFC ruled, against the weight of the evidence, that patent rights were public rights and not private property (MCM v. HP)-giving some credence to Lemely’s errant points of view.

    Gene maybe could have addressed this.

  • [Avatar for Night Writer]
    Night Writer
    March 30, 2017 10:37 am

    One more thing:

    Each and every one of you academics that reads this is culpable. You should be condemning Mark Lemley for his unethical conduct. The fact that you are not is shameful. Your job is to police your community. This illustrates that not one of you are a scholar.

  • [Avatar for Night Writer]
    Night Writer
    March 29, 2017 11:32 pm

    Another thing to notice about people like Mark Lemley is that they never address the substance of criticism. They act as if they are entitled and the geniuses and there is no need to actually the substance of a question, but that every question is an opportunity to pontificate.

    Well, Mark, why didn’t you normalize your numbers? Ethics violation.

  • [Avatar for Night Writer]
    Night Writer
    March 29, 2017 11:19 pm

    Another thing about this is that the value of patents (related to the litigation) probably have a melting point where when the value of the patents drop below a level that people are going to stop using them for many purposes.

    Lemley –the unethical–probably knows this and is intentional lying. It really is hard to fathom how we have sunk so low that an unethical, amoral, scumbag like Mark Lemley could be a “leading intellect” in patents that is cited by the Supreme Court. The man has no bounds at all.

  • [Avatar for Night Writer]
    Night Writer
    March 29, 2017 11:04 pm

    >>During the panel Lemley also disagreed with Judge Michel that the patent system is in crisis, noting that the uncertainty to the extent it exists is a patent litigation matter, and patent litigation is only a very small part of the overall system.

    This is typical out and out lying from Lemley. Just disgusting lies. I don’t think I am even going to explain why it is specious.

    Lemley you define the race to the bottom. Anything goes to get your way, eh? Lowlife.

  • [Avatar for step back]
    step back
    March 29, 2017 01:37 pm

    Eric @23

    Congratulations for waking up and smelling the java beans!
    The world is not driven by rational discourse and logic.
    Quite the opposite.
    Most of us make up our minds based on emotion and tribal affiliation.

    The “harmonization” angle is just one of many used by the shadowy organizations who are out to take down America one slice at a time, patent destruction being just one of those thousand cuts.

    Most engineers and scientists are not educated in the arts of rhetoric and mental manipulation. They sincerely believe they operate on the basis of pure logic.

    So they are frustrated and bewildered when they see the mass sentiment being steered by other means (e.g. “harmonization”, troll call, innovation stifling, witch outings, “abstract ideas” which only them holding the magic shard spun at the end of a dangling string can detect and point out as to direction of the claim and lack of the illusive “something more”).

    Keep your BS detector locked on stunned.

  • [Avatar for Eric Berend]
    Eric Berend
    March 29, 2017 01:13 pm

    I do not see why Prof. Lemley, who has never respected the academic standards, conventions nor traditions of academic debate and peer review, deserves a seat on a panel such as this.

    Therefore: why is he here? Pure corporate influence? Wherefore, this particular quid pro quo?

  • [Avatar for Eric Berend]
    Eric Berend
    March 29, 2017 01:04 pm

    @ 20., ‘Anon’:

    And, might I point out, the putrid mass of radical, un-American changes to U.S. Patent laws – were largely justified to legislators and policy wonks as “harmonizing” with Euro-based patent laws – as if, that should be some kind of virtue!

    Fine – I’ll just agree to cut off a couple of toes, just to “harmonize” with a less well-coordinated person – is that it? May be while I’m at it, I’ll take out a gun to do it, so it can be said that I “shot myself in the foot” – again: is that it?

    Said lame ‘harmonization’ excuse is served up as pathetic policy pablum: and this, is supposed to gloss over the reality; which stench, permeates the entire situation?

    An era of “alternate facts” holds sway, indeed. We now live in the world of G. Orwell, A. Burgess and W. Golding. I predict that this predatory sh*tstorm will get worse for awhile, in the racketeers’ desperation to ram through further damaging changes to U.S. patent law, before any potential realization of the Congress and the public; as to how their Constitutional innovation franchise was ruined; and how it will make America poorer over the next 20 years, at the least.

  • [Avatar for Gene Quinn]
    Gene Quinn
    March 29, 2017 12:50 pm


    Not sure exactly why this is so confusing to you Benny. You’d expect to see injunctions issue where patents have been examined and the law presumes them to be valid. But since courts and the PTO ignore the presumption of validity and SCOTUS has made getting in injunction extremely difficult if not impossible, that is why companies are going to Germany despite the significant bond requirements. This isn’t that difficult.

    Germany is issuing patents and giving injunctions. That is the whole point of the quote that you seem to have taken out of context and then incorrectly said I was comparing apples and oranges.

  • [Avatar for Benny]
    March 29, 2017 12:41 pm

    Let me provide a concrete example. I can’t get an injuction against my competitor in the US because I don’t have a patent protecting my product, since it does not include a novel feature. But I can get an injuction in Germany, since my utility model, sans examination, is protected. So where do you expect to see injunctions served?

  • [Avatar for Anon]
    March 29, 2017 12:34 pm

    Benny is just being Benny – a contrarian to anything that may hint of stronger US patents.

  • [Avatar for Gene Quinn]
    Gene Quinn
    March 29, 2017 12:13 pm


    No, that doesn’t help at all. It sounds like what you are saying is that German patents are just registered and not vetted in any way, but US patents are thoroughly vetted for some cases up to 10 or 12 years (sometimes longer). So it really makes no sense that injunctions are easier to get in Germany with patents that are not vetted. Injunctions should be easier to get in the U.S. where they have been examined thoroughly and subject to a decade long rigorous and costly examination process.

    So, if anything, what you are saying helps make my point more forcefully. I don’t understand why you seem to think what was written, which is perfectly correct, is not meaningful.


  • [Avatar for Anon.]
    March 29, 2017 11:38 am

    But Professor Lemley is merely using alternative facts! All the rage these days! If they’re good enough for the President…

  • [Avatar for Benny]
    March 29, 2017 10:35 am

    A more in-depth explanation for you: A German utility model patent can be granted without examination, but an injunction against goods infringing the patent can be obtained. This is not the case in the US, where, of course, you cannot be granted a patent without examination. Therefore, it is far easier to obtain an injunction against a competitor in Germany than in the US , because you are playing by different rules. So, the comparison between injunctions obtained in Germany and in the US is apples to oranges, and is not meaningful data.
    Does that help?

  • [Avatar for Gene Quinn]
    Gene Quinn
    March 29, 2017 10:27 am

    Benny @13-

    Not sure what you are trying to say, but your comment makes no sense on its face. You say that you have no protection outside of Germany with a German patent. That is a truism that can also be said about every other country on the planet. For example, outside of the United States you have no protection if you only have a U.S. patent. So I’m not entirely sure what it is that bothers you.

    As for whether it is possible or easy to get an injunction in Germany, it really doesn’t matter whether you accept that statement or not. It is true regardless of your belief (or disbelief).


  • [Avatar for Anon]
    March 29, 2017 08:53 am

    Viewing this as “an academic game” is not proper to the extent that it makes it ok for academics to play that game.

    Another “anon” poster at “the other blog” made a rather astute observation recently:

    Note: This is not particularly about the current Guest Post, but something a bit more meta, I’d like to engage others in.

    The differences between social activism (SA) and academic scholarship (AS) are legion.

    I find it particularly interesting that:

    whereas one of these anticipates and is often coincidental with pending or on-going actions before the court or government institutions;

    the other will often post-date a noteworthy or important development, putting it in perspective after the fact as thoroughly as academic scholarship enables,

    and regardless of how successful they are at their respective endeavors,

    one (SA) aims to present a particular persuasive position in the hopes of swaying that court or institution, whereas

    the other (AS) aims to provide objective and accurate scholarship analyzing from a dispassionate distance, the result or action of the court or institution,

    whereas one (SA) IS for affecting or effecting a result,

    the other (AS) IS for scholarly understanding of a result.

    This is not news (fake or real) to anyone. I still find this interesting to think about and keep in mind from time to time. Various blogs and sites have papers/posts/articles which vary from AS to SA. Given the ongoing political war between collectivism and individualism, SA is unavoidable in an area touching on property rights (IP and patent law), so every site and blog will have some of that if not explicitly, implicitly.

    I’m wondering if anyone would care to rank sites or blogs regarding the level of AS or ratio of Academic Scholarship (AS) to Social Activism (SA)?

    Attorneys have a strict code of ethics, given our role and proximity to law.

    Academics who teach attorneys AND actively seek to shape law through Social Activism have NO controlling code of ethics.

    If this be a mere “academic game,” it be a wicked game indeed.

  • [Avatar for Night Writer]
    Night Writer
    March 29, 2017 07:59 am

    >This isn’t some sort of silly little academic game

    That’s the thing isn’t it? Stanford University watches Lemley’s back as he pushes propaganda, ’cause that is what he thinks. He has no ethical code he has to follow. He writes whatever he wants. He is not a scholar because there are no consequences to his unethical conduct.

    So, a large of what is happening is the fault of universities like Stanford that value fame over ethics.

    Also, you know Lemley will not respond to questions about his ethics. He feels so entitled that he doesn’t even have to respond. He will give a propaganda speech and then run off the podium. I have made a clear ethics complaint that his use of raw data to support his hypothesis about the number of patent applications being filed is unethical. Lemley will not respond. Stanford doesn’t care.

    So, Lemley should be treated like a propagandist with no morals or ethics. As long as he is famous, Stanford has his back.

  • [Avatar for Benny]
    March 29, 2017 05:37 am

    “Germany is also open for business, where an injunction is routinely given to victorious patent owners”
    I don’t accept that statement at face value. In Germany, you have the option of a utility model patent, which can be granted without proper examination, and allows you to start suing left right and center, and on the cheap, too. Of course, outside of Germany you have zilch protection with this, You can’t make a direct comparison between this system and a properly examined US patent.

  • [Avatar for David]
    March 28, 2017 09:06 pm

    This isn’t some sort of silly little academic game – when the separation of powers are stake, at issue is personal liberty. This is a core American ideal that this country has paid a tremendous price, both in blood and resources, to protect and preserve.

    If the executive and legislative branches are going to take away my day in court before a life tenured federal district court judge, those branches better have a extraordinarily compelling reason for doing so.

    Thus far, the CAFC has demonstrated time and time again that it neither has the capacity nor the aptitude for deciphering the SCOTUS’s separation of powers jursprudence. The Academy is largely complicit, and views PTAB power as an exercise in sage policy wonkery.

    Shame on the SCOTUS if it declines to explain to the country why patent holders are no longer entitled to their day in court.

  • [Avatar for Night Writer]
    Night Writer
    March 28, 2017 08:28 pm

    @10 Anon: I agree with you, but no normalization means that Lemley is an unethical person that should be removed from Stanford Law School.

    The science faculty should rise up and remove this propagandist.

  • [Avatar for Anon]
    March 28, 2017 07:57 pm

    His point is immaterial (with or without normalization) as he is attempting a non-sequitur in trying to say that any mere volume “must mean” that there are no problems.

    That is not so.

    Further, as innovation begets innovation, we should not be looking for any merely linear growth (let alone “just humming along in any type of steady state), but rather, we should be expecting an almost geometric or exponential level of growth – especially given the business “book value” ascribed to the assets of intellectual property in the business environment over the last couple of decades.

    As for any type of censure, that simply will not happen until the entire academic structure is uprooted and redone. It must be almost two decades now that I looked into a career in academia, did some deep investigation (including some amazing interviews with local faculty), and discovered for myself the cess pool of pleasing the powers that be – the established tenure track LACK of meritocracy for what constitutes “getting ahead” in that field.

    Yes, that is a generalization, and yes, there are good professors out there despite the system, but make no mistake, the system of academia is VERY broken.

    (and law school is no different – I have done some work with universities, and the difference between the university departments actually involved with innovation – and seeking protection and investment recoupment for that innovation – and the more “purely” academic side is downright startling.

  • [Avatar for Night Writer]
    Night Writer
    March 28, 2017 07:14 pm

    >The first controversial statement from the panel came from Lemley, who said that if you look at decades of data, the fundamentals of the patent system have been moving along status quo regardless of changes to patent law. Lemley’s point was that patents continue to be applied for and continue to issue in record numbers.

    Has Lemley normalized these numbers, e.g., number of patents per billion dollars of GDP generated by tech companies? No he hasn’t. And, if the numbers are normalized then the number of patents has been falling. So, again—we see Lemley is unethical. You must normalize numbers to use them to support a hypothesis. Shameful. If he were a scientist, at minimum, he would be suspended for a year.

  • [Avatar for Night Writer]
    Night Writer
    March 28, 2017 07:10 pm

    Mark Lemley is a highly unethical person. His papers are published in the vanity press without review and he misrepresents cites, omits cites counter to his propaganda, misrepresents science, misrepresents historical facts, etc.

    He is unfit to sit on that panel. Disgraceful.

  • [Avatar for step back]
    step back
    March 28, 2017 04:50 pm

    Ex-SW Engineer

    I apologize for some of the rather harsh responses you are getting.

    There is a big misunderstanding here.

    The US patent system is NOT set up to prevent “copying” of inventions.

    The main thrust is to set up a winner-takes-all RACE.
    It is this winner-takes-all RACE that “promotes” the progress of science and the useful arts. See US Constitution Art. I, section 8, clause 8.

    It is no defense to say that you did not copy but rather you invented independently.

    Whether you knew it or not, you were in a race and you lost. The other guy came in first (first to invent under old system, first to file under the new AIA system).

    Good intent and all that are irrelevant under the US patent system. The only questions are who came in first and is the claimed invention new, useful, nonobvious and sufficiently enabled (and according to the SCOTeti, whether it passes their subjective witchcraft detection test). 🙂

  • [Avatar for Gene Quinn]
    Gene Quinn
    March 28, 2017 03:32 pm

    Ex-SW Eng-

    I’m sorry you were unable to read and understand the article. If you had read and understood the article, and were familiar with the industry, you would know that Lemley is wrong (and you are also). Those engaging in the widespread theft of patent rights do NOT try to avoid infringement. They do what they want regardless of the rights of others. That is not trying to avoid infringement. If you can’t understand that it isn’t my problem, rather it is your problem.

    You can choose to ignore the truth if you want, but everyone in the industry has heard countless stories from attorneys at major corporations… Google, Microsoft, Apple, etc. etc. who on programs all across the country talk about how they simply throw away inquiries from patent owners. So you can believe this is a lie if that makes you feel better, but ignorance is not bliss… as it turns out ignorance is just ignorance. I’ll also point out that it is interesting that a non-attorney nameless software engineer like yourself who obviously has never spoken to any in-house attorneys or been present when they speak lovingly at CLE programs about how they throw away letters and ignore inquiries and refuse to negotiate. Notice no attorneys question me on this point ever because what I say is so universally known to be true it is unassailable.

    But, since you seem to know nothing about the industry, why don’t you see for yourself: (discussing demand letters, which is different than a notice or inquiry letter, but if 20% or more are doing nothing with a demand letter what do you think is happening when a patent owner merely offers to negotiate a license?)

    And how about this: “researchers and companies in component industries simply ignore patents.” Professor Mark Lemley (at page 21):

    And this: “Most–if not all–of these cases of unintentional infringement could be avoided, if companies proactively endeavored to identify patents relevant to their intended products.”

    But from now on I’ll be sure to look for opportunities to quote any and all corporate attorneys who admit to this practice. I haven’t wanted to do it in the past because I know it will bring a great deal of negative spotlight on the attorney and corporation, but if people like you are going to question that these activities are actually happening or being routinely admitted to then I guess I’m going to have to start compiling a greatest hits quote list. Shouldn’t be very difficult at all. You really can’t go to an event that discusses patent litigation without some in-house attorney bragging about ignoring patent owners. The problem is practically ubiquitous.

    As for whether it is difficult to determine whether someone has applied for a patent, the answer is yes. But any idiot realizes that one is NOT trying to avoid infringement if they’ve been shown a patent being infringed and then ignore it, throw the letter away, continue to infringe, and fight for a decade or longer against those with solid patent rights on extraordinarily important inventions. Ironically, the infringers of the world only settle bogus claims against horribly weak patents.

    Well, I hope this educates you and helps you become more information!


  • [Avatar for Valuationguy]
    March 28, 2017 03:32 pm

    Dr. Lemley has built his entire career around enabling the efficient infringement meme. His academic papers discussing why patents aren’t enforceable (i.e. chances are heavily in favor of the infringers never having to pay a cent) or shouldn’t be a barrier to use by third parties are invariably cited whenever ‘patent reform’ is called for. Few realize that several of his early papers were commissioned by the infringer’s lobby of corps (Cisco, Apple, Microsoft, Google etc.)…even though he claims his ideas are his own…unrelated to the $100K’s of grants he has received from these anti-patent sources. If you wonder why Google is contemptious of patents in general….note that Lemley is Stanford’s patent guru…and Google is Stanford’s prodogy corporation.

    He’s good with statistics…but the underlying premise he uses his statistics for is to say…..go ahead and infringe……rather than there is something wrong and we should be strengthening up the system.

    I personally believe that his connections to Silicon Valley blinds him to the DESTRUCTION his positions inflict everywhere outside of the Valley. The Valley is so entreprenuerial that failures are fleeting and the human costs of failure is meaningless to academics like himself due to the VERY FEW HUGE winners. (How many failed inventors/patent owners whose patented inventions get stolen/crushed have the resources to GO to Stanford?…but I’ll be he knows the guys at GOOGLE pretty well.) The fact that he lives in a paradise bubble is lost on him.

  • [Avatar for step back]
    step back
    March 28, 2017 02:46 pm

    The inventors rights with respect to patented IP metes and bounds is the same relative to the public as are the rights of a land owner to deeded real estate, namely to have exclusive enjoyment of the claimed territory.

  • [Avatar for Ex-SW Eng]
    Ex-SW Eng
    March 28, 2017 02:21 pm

    Gene, as always you trash anyone who disagrees with your hobbyhorse opinions on the basis of no evidence. For instance, I can’t help but admire the way you respond to Lemley’s argument re: the need for an independent invention defense.

    Lemley’s statement, according to your own article: “You have [inventors] who genuinely tried not to infringe.”

    Step 1: You make a blanket assertion about an entire class of defendants who have been found to infringe patents, across all industries, encompassing all sets of facts: “In fact, those who infringe do nothing of the sort.” Already, you shifted the subject from “those who invent” to “patent lawsuit defendants found guilty.” Or maybe you’re just slinging “those who infringe” around against anyone accused of infringing whether or not there’s been a legal determination that they infringe, which still isn’t the same subject of Lemley’s statement.

    Step 2: Evidence-free assertion about a different group of people: “In many major corporations patent searches are simply not done, and in fact reading the patents or patent applications of competitors is strictly forbidden.” We’re no longer talking about either “those who invent” OR “those who infringe,” but now “many major corporations.” And how do you define “major?” What proportion is “many?” Who knows – God knows you don’t attempt to define either, let alone offer any evidence for your statement.

    But even if your second sentence were absolutely true, how would it address Lemley’s larger point at all? To wit: there should be an independent invention defense because it’s difficult for inventors to determine whether another contemporary inventor has applied for a patent that claims the same invention. Your counter: Many major corporations don’t run patent searches. So? It’s a non-sequitur – what about all corporations that aren’t “major?” What about academics, garage inventors, hobbyists? Is it true or not that due to unpublished applications, it’s difficult to determine whether someone has already applied for claims that cover what you’re doing around the same time? Moreover, now that our system is first-to-file, isn’t it true that this is an even bigger problem today?

    Show your work, man.

  • [Avatar for David]
    March 28, 2017 11:28 am

    Lemley has previously argued that patents are not property rights but public rights:

    It’s not the focal point of the paper, but the conclusions are there.

  • [Avatar for mark martens]
    mark martens
    March 28, 2017 11:05 am

    Hey Gene, I’m an inventor with hard-won patents. And I have felt all this on a personal level. Just as you describe it.