A Call for Enacting Urgent Patent Reform: A New Patent System for Securing U.S. Technological Leadership

Capitol BuildingThe U.S. patent system is the primary contributor for the U.S. economy. Since the founding of the nation, the patent system has fostered an innovation culture that is directly responsible for making inventions that are more than all inventions accumulated in all major civilized regions in several thousands of years. However, the U.S. has inherent disadvantages in the political system and court systems. The inefficiency in patent adjudication has been used by corporations as an excuse for creating an anti-patent culture that is to make all inventions free for corporations. Corporate lobbying activities and litigation agenda have gradually influenced the government in forming an anti-patent political landscape in the last half a century.

In this anti-patent political landscape, the government treats inventions as commodities, regulate inventing activities like producing goods, treats patents as public properties, and changes patent laws and procedures like rearranging office furniture. After inventors have spent years of hard work, exercised inventive skills, and consumed personal resources to invent and dedicate their inventions to the public, the inventors can only hope that the government would deliver its constitutional promise. However, the government has done everything possible to frustrate the right of patent owners to enforce their constitutional rights. The government has changed rules and laws in prior art scope, invention priority, injunction conditions, litigation venue, patent construction, error correction, enabling disclosure requirements, expanded mental step doctrine, abstract idea doctrine, invalidation procedures etc. to make sure that patent applicants will not get patents, patent applications will be denied, granted patents will be invalidated, survived patents cannot be enforced, patents in suit will get less or no damages, and patent owners are thrown out of court or rewarded with liabilities. The mistreating inventors have reached the highest point shortly after the passing of the AIA. The combined effect of all government actions by legislature, federal courts, and the patent office is nothing less than outright forfeiture of constitutionally promised rewards.

I show by a hypothetical example how this anti-patent movement has become. The AIA provides multiple post-grant procedures for invaliding patents. An issued patent may be challenged for unlimited times. Thus, if a patent with a marginal merit which would be invalidated by 0.5 probability, its survival probability after five times independent challenges would be 0.03. For one hundred such patents, if the Patent Office only hears challenge once, about 50 patents would survive. If each of the patents were challenged five times independently, only about 3 patents would survive. The designers of the invalidation procedures are not aware of this fatal flaw in the common law model, which was developed by Kings in an ancient time. By conducting a simple model study, they should see that successive challenges would result in a bias in favor of invalidation. Unlimited challenges eventually hit a lottery, repetitive dismissal motions will succeed in throwing plaintiffs out of court, and repetitive prosecution of defendants would surely result in conviction. A nation cannot use such a clearly flawed procedure to deliver justice. This kind of patent justice is no justice. It is a patent joke that should shock the world. In reality, the outcome of the above hypothetical example would be worse. Even those three patents would not survive according to hypothetical probabilities because the outcome of each challenge would be heavily influenced by political climate. In this anti-patent time, it must be “right” for patent judges to invalidate a patent. So, patent judges can use unlimited devices from technicalities, no-mercy rules, procedural features, evidence credibility, to personal bias to reach what they think is a right result. When nothing can be used to achieve a result of invalidating patents, they just call apples oranges. No body can see factual distortions in their opinions because they characterize facts in their languages. Many patent board decisions are as worse as calling apples oranges. On top of all, they can use the most powerful weapon: using worldwide references in any combinations. Any patent can be invalidated in one challenge, two challenges, more challenges, and still more challenges. Even after a patent has survived one hundred challenges, more references may be dug out from a graveyard somewhere in a remote country, or translated from rare languages, or manufactured and planted by patent thieves. Now, the patent is finally invalidated because no body can show reference problems. The absolute accuracy ideology is incomprehensible in contrast to the extremely low validity of legal theories and procedures originated from common-law courts. The Patent office must stop invalidation procedure now because the entire invalidation procedure based on NO science violates substantive due process.

This anti-patent political landscape has caused irreparable damages to the public trust in the patent system, where exchanges between inventors and the public under the U.S. constitution are voluntary. When patents become lottery tickets or even liability hooks, rewards are empty promises. On top of all problems, reduced damages awards imposed by courts have an effect of kicking out litigation firms, assertion companies, IP venture funds, insurance companies, and “patent trolls” out of the patent litigation business. As a result, inventors end up with nothing from their decades-long inventive venture. After they dedicate their inventions to the public, they cannot get back their inventions. Such rewards are as unworkable as no-reward-for-inventions in the human histories and are same as invention state-ownership once known in Russian. Given the high amounts of prosecution costs and litigation costs, only a tiny fraction (less than 0.1%) of the U.S. population could afford to make an invention venture. Such a patent system no longer encourages the population to invent and disclose, but rather frighten inventors away. The patent system has become a special government unit for managing corporate product improvements, and patent enforcement has become only a business venture for big corporations.

This anti-patent movement took place at the worse time when the U.S. is facing intensive competition in the world. This is the time when the U.S. experiences in competition inherent disadvantages of low productivity caused by state and federal law conflicts and the court system, while competing nations have increased their productivity dramatically.  U.S. anti-patent culture started discouraging innovation activities, while competing nations including China and Japan steadily improved their patent systems and increased rewards for patents. Even Russian added monetary damages as remedies and thus made its patent system more favorable to patent owners. While most nations amended patent law to promote innovation, the U.S. does exactly the opposite. As a result of the U.S. anti-patent movements, the U.S. patent system has limited potential inventors to only a tiny percent of the general population, while the competing nations have expanded their inventor pool to reach more people in their general populations. This fact is reflected in patent filing numbers: China annual patent filing number has exceeded the U.S. figure, with a double-digit annual increment rate. The total number of people who would be inventors in competing nations probably exceeds the U.S. figure by several magnitudes. Rewards by exclusive rights are more deliverable in most competing nations because litigation costs are much lower. In comparison, exclusive rights in the U.S. have become meaningless due to high uncertainty in patent validity, courts inefficiency, and corporate litigious culture. Each of those nations has strengths in one or more distinctive technological fields. By looking at the combining strengths of inventing activities of all competing nations, the U.S. does not have a chance to maintain its current competitive position.

Ignoring this war-losing situation, U.S. corporations still complain about the number of patent disclosures by pushing for absolute patent quality standard and promoting so-called “international standard” etc.  The government failed to understand that an international standard affects different nations differently, depending upon technological roles in their economies. A uniform international standard is most harmful to the U.S., less harmful to less advanced nations, beneficial to developing nations, and most beneficial to nations that compete with the U.S. It is obvious that adopting an international standard in patent hurts the U.S. the most. The government still advances corporate interests by trying to reduce the number of patents and invalidating granted patents. Even though it is obvious the U.S. patent system is completely dead and this two hundred years innovation culture is gone, the government has not realized what must be done to ensure that patent system will have inventors and the public will enjoy future inventions. In such anti-patent climate, the government is blind to widespread corporate policies of not negotiating with inventors, open pledges for not suing each other on patents, and price-fixing practices intended to remove the market of patents and depress the prices of inventions. On July 13, 2017, House IP Subcommittee holds another one-sided hearing on bad patents and patent trolls. None of the witnesses pointed out that patent trolls are natural consequences of the judicial inefficiency that must be addressed by improving the court system. The witnesses failed to point out that bad patents comprise only a very small number, their adverse effects are trivial in comparison with the huge contribution of inventions and the underlying innovation culture to the economy. The Congress failed to see that the U.S. is in a war-losing situation, and failed to focus what is really important to the U.S. future. It must tolerate a few bad apples to make the big system work and any attempt to eliminate the few bad apples would surely doom the patent system. Dooming the whole system is what it has done.  The unwise actions of government ensure that the U.S. ceases innovative activities and is losing technological competition in all areas including production art, basic research, disruptive technologies, and ground-breaking technologies. The losing U.S. technological position is partially reflected in trade performance data.

By forfeiting patent rights, the U.S. naturally is enjoying a short period of economic boom as expected. Corporations really enjoy benefits from harvesting seedlings to fill stomachs. After this short boom is over, the U.S. will feel the impacts of lost technological edges in all fields. The U.S. will be losing product competitiveness in all areas, losing technological license revenues, increasing trade deficits, losing tax revenues, adding more national debts, seeing more broken roads and bridges, losing tourist business, and diminishing its capacity of addressing problems caused by social unrest, environmental pollution, natural disasters, and epidemic outbreaks. When a day comes that the public needs new inventions to save the nation or the population lives, no inventor will be found, and no inventions will fall from the sky. The lost competitiveness in U.S. exportable products and technologies will lead to loss of the dollar role as the world currency, and its GDP, which contains high portion of junk revenues and extremely high service charges, will collapse. The GDP loss, as rated in foreign currencies, from a changed dollar’s status alone would be more than half of its current figure. I predict that the U.S. GDP can retain at most one tenth of the value in terms of purchase power according to pricing scales used in Asian and BRICK nations.

In making a legislature to secure national future, the Congress should affirmatively recognize the role of the U.S. patent system in making the superpower and critical roles of technologies in competition in the world. The Congress should consider patent costs relative to the contribution of the patent system to the economy and the consequence of shutting down the patent system. Even based on the largest claim that patent litigation (mostly by patent trolls) cost U.S. business $29-$60 billions a year, the overall cost was only less than 0.3% of the whole economy. Certainly far and far than 0.3% of the whole economy could be contributed to the inventions and business opportunities brought about by innovation activities. The Congress should see that any attempt to eliminate this tiny fraction of the patent litigation costs would cripple this whole economy. Adverse impact of wrong fixes is not 0.3%, not 3%, or not even 30% of the economy.  Both China and Russian tried inventions-for-public or invention state-ownership policy in recent histories, both nations suffered serious consequences in technological advancement and economic growth. By studying China’s economic performance before it opened door, and Russian economic performance in its inventions-state-ownership era, anyone can figure out how such policy has a terminal impact on national economy.  Both China and Russian abandoned free-invention-for-everyone ideology.  The U.S. should not have entered into the free-inventions-for-corporations and patent’s public right era.

In addition, the Congress should consider the following facts. First, the benefits from promised patent rewards constitute only a tiny fraction of the benefits that the public receives from all patent deals between inventors and the public. It is a bad policy to mistreat inventors in any case resulting in a loss of a large number of deals for the public. Second, among the public member, corporations benefit the most from the patent system. We should note that most large corporations use thousands to millions of inventions that are originated from the patent system. None of the inventions are free. Third, treating patent right as a public right would result in fewer patent disclosures: this is well reflected in invention accumulation paces in the thousands years of histories of the four major civilized regions in the world. Demanding free inventions means no invention. Treating inventive activities like corporate business will suppress inventing activities. Finally, most importantly, turning patents into lottery tickets and liability hooks dramatically reduces patent values. The reduced damages awards would discourage litigation funds, insurance companies, and venture funds from funding patent litigation. The high validity uncertainty with limited damages imposed by the courts makes patents unenforceable. For all those reasons, patent law must be most favorable to inventors if the government wants inventors to invent and make patent disclosure.

How much the U.S. will get from inventors will depend upon how much real reward it gives. The free-invention concept never worked in thousands years of human histories, and the idea of compelling inventors to invent never worked neither. A sound patent policy must be formulated to provide sufficient incentive to inventors, who are leading economy growth. A sound policy is to reduce patent-eligible standard for patent, eliminate patent uncertainty, abolish inequitable conduct rule, reduce prior art standard, restore the first-to-invent rule, restore injunction as a right, eliminate patent application fees and maintenance fees, reduce or eliminate court fees for patent cases, eliminate no-mercy rule, abolish inequitable conduct defense, criminalize all anti-competitive commercial activities relating to patents, eliminate all common law defenses, pre-empty state regulations in any area relating to patents, and revive invalidated patents. It is the time to study all inventor-hostile cases and statutes to understand how they collectively destroyed the patent system. The Congress should systematically overrule them. The Congress should address all patent laws by using a whole system approach, and must clearly aware that each inventor-hostile statute or court decision intended to fix an isolated problem will discourage other inventors and may result in loss of a large number of critical inventions; using absolute accuracy ideology in patent validity could discourage inventors from contributing their inventive talents but encourage the formation of a harmful culture of infringing patents and stealing inventions; and systematic mistreatment of inventors has a final effect of shutting down the patent system. Inventors are free to walk away from inventing and disclosing.

After the irreparable damages of public trust in the patent system, overhauling the patent system is no longer a feasible option. To continue existing as a powerful nation in the world, the U.S. must put its population back to the inventing business and create a renewed innovation culture, which could reach the entire population. It cannot count on the “miserable system” known in Thomas Edison’s time. Due to intensified competition and critical roles of technologies in competition, America must do far more than what is necessary to turn the dead patent system back to the same “miserable system”. One more thing that the Congress should do is to revive all invalidated patents under the AIA.

The expected litigation expenses would scare all people in the general population. Inventing is no longer a venture for independent inventors, small business and non-profit organizations. Due to lack of realistic revenues to enforce patent right in the current court system, the Congress should consider establishing Patent Infringement Determination Board for determining patent infringement. In light of the current corporate culture of resisting paying for inventions, and the extreme inefficiency of common-law court systems, rewarding exclusive right by providing litigation tickets is no longer sufficient. The problem has reached a terminal stage when the patent damages rewards are so limited. In many times, patent rewards may be insufficient to cover one to three millions of dollars litigation expenses. It must provide a low-cost alternative forum.

The U.S. should consider providing cash rewards to inventors. To counter the corporate culture of infringing patents, rewarding inventors with cash is the only way to attract future inventors. Technologies will not advance unless the U.S. gives definite, substantial, meaningful, and prompt rewards. The only reasonable way to get reward funds is to levy invention usage fees from matured corporations according to their invention usage levels. This is the only solution to solve the sharp conflict between corporate free-invention demand and reality that nobody can make free inventions. In addition, the patent office fee structure should be restructured according to applicants’ usage of inventions. Applicants who only contribute inventions should not be required to pay any fees, but the applicants who are inventions users should pay fees based upon their usage levels of inventions. This fee structure is clearly better than the current fee structure.

One main reason for the U.S. loss in the world trade war is excessively high patent-eligibility requirements. Without any incentive to product incremental improvements, the U.S. will never improve product quality. Therefore, adding protection like a utility model grant is critically important to the U.S. future. Americans can make good products but corporations fail to provide incentives to make small product improvements. This often results in situations where ten small improvements in foreign products make them far more attractive to consumers. Many competing nations including Germany, Australia, Japan, China, Russian (Newly added), India (will add) grants protection for utility models. As far officials of JPO are concerned, 96% were of the view that utility models have played an important role in the economic and technological development, whereas 76% agreed that utility model system was also responsible for fast growing industrialization of Japan in the past. Such protection would be even more important in the U.S. because the patent eligibility standard in U.S. is very high. This leaves a big technological space where no protection is available. No body will spend time to make small improvements when any improvements can be copied and used by anyone. This is precisely why U.S. products could not sell well even if its overall quality and features are better. The U.S. products are full of small imperfections in looks, use configuration, materials, weights and sizes, and durability. An opposing argument might be that an additional protection may burden corporate business. That argument is as absurd as the argument that shutting down the patent system is the best solution to all patent-related problems.

When the nation was foundered, America was innovative in creating the patent system more then two hundreds years ago. In this new era when technology is the key in competition, America must be more innovative in creating a new patent system. Such a new patent system is designed to foster innovation culture that includes all potential inventors. America, as the technological leader, should never have moved backwardly to join so-called international standards to become a follower, but must pull away from the crowd by creating a new patent system with stronger incentives for innovation. America must do anything necessary to build new public trust in the new patent system so that the new patent system will attract the entire population to invent and disclose. It is hoped that those proposed measures would buy more time for the U.S. to fix root problems in conflict state-federal legal system and the court problems.


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Join the Discussion

33 comments so far.

  • [Avatar for Eric Berend]
    Eric Berend
    July 25, 2017 01:11 pm

    Hmm…looks like “Benny” is asserting more of his internationalist, Anti-American, behemoth corporation allegiances here, than as usual.

    Look, I do “get it”: there are some 300,000+ attorneys in the U.S. and more worldwide, with an incorrigible intellectual contempt and derision for inventors that is all out of proportion with our presence and in particular, our lack of power in U.S. society, today.

    Nonetheless, sycophants for corporate bullies, such as “Benny”, “Tiburon”, “Ceasar Salazar”, etc., etc., continue to spend hundreds of hours out of their professional lives to come here and comment (and on other Internet ‘blogs, no doubt), expressing the most derogatory, condescending opprobrium and; to be blunt; nasty vitriol that is wholly unwarranted and unprincipled.

    In a word, these gloaters enjoy twisting evil at victims of brutal power abuses, in the U.S. society and its economy, today. It is difficult to even conceive of more petty evil, in this world. At least for their corporate masters, there is some real power and profits to be gained; for these gutless, evil minions, toadies and flunkies – far too often, they shill for ego gratification; evidently, they are not even wise enough to demand payment from their corrupt masters, for such dedicated services.

  • [Avatar for angry dude]
    angry dude
    July 25, 2017 12:19 pm


    Patent may have no value simply because corporate folks like you don’t give sh1t and don’t think twice before implementing patented tech without license – with full active participation from USPTO, Scotus, Cafc, Congress, obama (that one is gone at least)
    Once they restore injunctions or at least treble damages for willfull infringement a lot of patents with no value at present will be sought after by folks like you

  • [Avatar for angry dude]
    angry dude
    July 25, 2017 12:06 pm


    Your position of a wealthy patent system abuser/polluter is well known here

    The current state of affairs with US patents is unacceptable by any standard

    They have provisional patent applications for micro-entities costing less than a dinner for two at mediocre restaurant

    Yet they want you to spend 350K on just one IPR (and they can institute as many as they want)

    This system must collapse and will collapse

    We, inventors and small hi-tech startups, are crazy but not stupid

  • [Avatar for Anon]
    July 24, 2017 08:05 pm

    Ah, thanks – so your point is that some in Congress will not want to remove the meddling of the Supreme Court (someone to place blame upon, perhaps?)

    Alas, perhaps I need to remind you too that patent law is statutory law. Congress cannot evade its responsibilities and “blame” the Court, because no matter what the Court does, it remains the responsibility of Congress to set things right.

  • [Avatar for Night Writer]
    Night Writer
    July 24, 2017 04:26 pm

    @27 Anon. The 101 topic is too big for here. But, the proposals need to address specific issues (like DNA) in a way that the Congress could vote on it. Right now, the proposals out there just wipe out all 101 SCOTUS decisions. That isn’t going to get through Congress. And, I think as you say, that some open the door to the SCOTUS playing Alice games again.

    It is a big topic. But, what is out there would never get through Congress.

  • [Avatar for Karen]
    July 24, 2017 02:49 pm

    Hope that sooner rather than later I hope that the patent reform improves, (especially for small inventors).

  • [Avatar for Anon]
    July 24, 2017 02:23 pm

    Night Writer,

    To your comment of “I would think @15 Anon: they are non-starters. The 101 proposals do not address issues that have to be addressed. Please.”

    Can you perhaps be more specific?

    Are you looking for an affirmative declaration, perhaps? As I indicated, the proposals DO act to overturn the past Supreme Court common law version of rewriting the statutory law version from a previous Congress in 1952, and with those cases being overturned, I have to wonder what it is that you see missing.

    As I indicated, I do see something missing – the ability to stop the Court from replaying its own nose mashing all over again. But without specifics from you, I am not sure what direction you would prefer a different 101 to go to.

  • [Avatar for PTOindentured]
    July 24, 2017 11:05 am

    Dr. Wu,

    Thank you for your important and vitally needed article. It is the most detailed, fact supported and concrete-solution suggesting one I have seen to date.

    Thinking about it brought the following scenario to mind:

    Imagine, by logical extension, a similar patent-system-destroying approach now being directed at U.S. small businesses, on the following basis:

    ‘Many small businesses in U.S. have and continue to operate under ‘bad’ contracts. Such bad contracts are often the work of ‘troll’ (evil) small U.S. companies, and have surely taken a toll on some of our large U.S. corporations. We must now single them out by ’empowering’ large corporations with a gauntlet of small-business killing law so that we can rid our country of these ‘troll’ small businesses. Even though small business generally accounts for a lion’s share of our economic might, and such trolling practices are much less than 1% occurrance, ‘we’ should not stop until anything of value producible by evil ‘troll’ small businesses is deemed (or de facto) ‘public’ property, made available to the large corporations such that they (and any foreign country) can make, use and sell those products and services freely–as long as they like.


  • [Avatar for Night Writer]
    Night Writer
    July 24, 2017 11:04 am

    >>oes that stem the tide of 0.25 mega applications per annum? I haven’t noticed.

    Actually, US original patent applications normalized are down.

  • [Avatar for Frank Lukasik]
    Frank Lukasik
    July 24, 2017 10:02 am

    Benny-No, the Patent is gone, not for sale or auction. as a Default.on your mortgage.

  • [Avatar for Benny]
    July 24, 2017 09:55 am

    More like eviction for defaulting on your mortgage ?

  • [Avatar for Benny]
    July 24, 2017 09:53 am

    SME’s get a lower rate than corporate, and that is not the case anywhere else in the world. You will not find many jurisdictions (excluding China) where you will get a better bargain. In the EU you have the privilege of paying pre-grant annuities. Yes, it is expensive, yes, there is dubious value for money, yes, USPTO examiner salaries are public domain and will turn your face green with envy, and are funded partly by your fees. Does that stem the tide of 0.25 mega applications per annum? I haven’t noticed.

  • [Avatar for Frank Lukasik]
    Frank Lukasik
    July 24, 2017 09:50 am

    The Patent was issued for seventeen years. Expiring a Patent for non-payment of a Maintenance Fee is like burning a house down for non-payment of taxes.

  • [Avatar for Night Writer]
    Night Writer
    July 24, 2017 09:45 am

    They have vastly increased the maintenance fees over the last 10 years. That is a little discussed way the USPTO has weakened the patent system. The PTO has the ability to change the fees by themselves.

  • [Avatar for Benny]
    July 24, 2017 09:39 am

    That might be because in 4 years the inventor may have learned that the patent has no value (designed-around/outclassed/no market demand/too narrow/no one gives a flying…).

  • [Avatar for Frank Lukasik]
    Frank Lukasik
    July 24, 2017 09:23 am

    First-To-Invent relates to AIA. Expiration of Patents is also important because only 50% of inventors pay the first four year payment.

  • [Avatar for Night Writer]
    Night Writer
    July 24, 2017 09:20 am

    @15 Anon: they are non-starters. The 101 proposals do not address issues that have to be addressed. Please.

    @13 Benny. Well, that’s the thing isn’t it. The anti-patent corporations have so much more money. And, law firms do not typically get involved in legislation like this. There are some organization of the lawyers that do, but lawyers do not lobby for things like patent reform because of the appearance of a conflict of interest. We adjust and find new business.

    But, nice subtle tainting on your part.

  • [Avatar for Anon]
    July 24, 2017 09:05 am


    Yet again, the concept of forfeiture related to the maintenance fee structure has zero to do with the AIA.

    You cast shade on any arguments that you may have against the fee structure in the eyes of anyone with knowledge of the patent system (is it your purpose to drive away potential allies?).

    Benny, your “logic” vis a vis “if Google does “X,” then you should be able to get someone else to do “Y” does not reach. There is simply no causal connection there to support such a leap.

  • [Avatar for Anon]
    July 24, 2017 08:54 am

    Night Writer,

    I will disagree with you concerning proposals to change 101 – at least to the extent that several proposed changes are “good enough” as far as Congress explicitly overturning the nonsense cases (common law writing) of the Supreme Court.

    What the proposals so far lack is the (necessary) prophylactic measure of jurisdiction stripping so that the Supreme Court’s addiction to its sticking its fingers into the 101 “nose of wax” is finally broken.

    The Supreme Court simply did not “get” what Congress did in 1952, and a stronger measure is required.

  • [Avatar for Frank Lukasik]
    Frank Lukasik
    July 24, 2017 08:52 am

    Correction to Comment 12- First to File, not First To-Invent.

  • [Avatar for Benny]
    July 24, 2017 08:50 am

    If Google is funding low-key lobbyists (not that I’ve seen any credible evidence to that effect, but I’ll take your word for it), surely you can get a few major law firms to fund your own lobby and maybe pay you to write pro-patent comments on the blogs.

  • [Avatar for Frank Lukasik]
    Frank Lukasik
    July 24, 2017 08:46 am

    The AIA took the Patent System away from Independent Inventors and gave it to Corporations with the First-To-Invent policy. Expiring Patents for non-payment of Maintenance Fees gives Corporations.royalty free use of Independent Inventors invention (1,300 every Tuesday), (Lucree v. US, 14-1340)..

  • [Avatar for Night Writer]
    Night Writer
    July 24, 2017 08:39 am

    The problem is that what is happening has nothing to do with what should be done for the health of the USA. It has to do with what is being done in return for money from Google. (And, some unethical law professors that are either on a mission like Mark Lemley or who take money from Google.)

    Our side is lame. We don’t even have a good proposal to change 101.

  • [Avatar for Anon]
    July 24, 2017 08:03 am

    Let me also quickly add that disruptive innovation OFTEN includes an initial drop in perceived quality of made products, but is also associated with a steeper climb in perception of that same production quality as the disruptive innovation develops additional ancillary innovation in producing the disruptively innovative product. See at least Clayton Christensen’s work on this aspect of innovation.

    Thinking that “must be better” in the sense of product quality would then serve to STIFLE innovation – especially the valuable type of disruptive innovation.

  • [Avatar for Anon]
    July 24, 2017 07:56 am

    Started out agreeing with you Benny (rare in and of itself), even beyond the sweeping generalization point and to a point touching patent law. Patents and product quality are at best tangentially related (being that a patent is a negative right of exclusion and not a positive right of building product).

    On a slightly different path, I would add that sure, a negative right may provide the person with the exclusionary right a “mulligan” to not have to worry about competing on the basis of actual product quality, but one needs to remember that there is NO “must make” requirement in US patent law, and thus, the Quid Pro Quo and the benefit of the bargain is reached for BOTH the patentee and the public if the patentee would not only NOT make himself, but if the patentee would refuse to let anyone else make for the entire duration of the patent life.

    This is a critical reminder that THAT is the bargain.

    Encroachment on that bargain has been an ardent aim of the Efficient Infringer’s group (as well as other ideological groups) , as has been discussed across several threads.

    I even agree with you that reducing the prior art standard is a poor idea. To me, that smacks of rubber-stamping “Accept, Accept, Accept” which is simply as bad as rubber-stamping “Reject, Reject, Reject.” ***

    One might as well simply remove examination and go to a pure registration only system. ****

    But I DO diverge from you Benny when it comes to basing “screens” on dollar levels.

    Such (as has been captured in award winning historical journalism) is the OPPOSITE of how the US system was designed from its start.

    The US system was purposefully different in that it was built to be able to be enjoyed by a far larger swath of society than the European model (which resembled a ‘game of kings’).

    Further, “cranks on board” are typically the FAR EASIER applications to examine. Tough examination occurs for those cases at the edges of advances, with close calls over prior art. Cranks do not occupy that area. Further still, “cranks on board” PAY their share and deserve every bit of (even of the easier) examination, even if YOU disdain what they are attempting to do with their pro se efforts.

    *** some may raise a colorable argument that the balance would be “OK” slightly shifted to the patentee side in that preventing a valid patent from being obtained is worse than allowing an invalid patent patent to be obtained because the latter has recourse in the courts, while the former has no further recourse.

    **** I have pointed out that such a choice may well be worth considering. After all, the US patent system is solely funded by fees on innovators (to the tune of Billions annually – yes, that is a “B“), and a pure registration system could be had for literally pennies on the dollar. Of course, such a radical change would impact other patent notions, such as what the sticks in the bundle of property rights should look like after such an examination-less ‘grant’ (for example, the valuable stick of the clear and convincing standard that post-grant patents enjoy would likely NOT be sustained, nor likely should it).

  • [Avatar for Benny]
    July 24, 2017 05:37 am

    ” The U.S. products are full of small imperfections in looks, use configuration, materials, weights and sizes, and durability.”
    As an employee of a US manufacturer, I object to that sweeping generalized statement. Even if it were true, it would have nothing to do with the patent system and everything to do with consumer demand for lower prices.

    ” A sound policy is to … reduce prior art standard…eliminate patent application fees and maintenance fees”
    Reducing prior art standard will put the US system back to where the Australian system was prior to 2013, where you could obtain an Australian patent for an invention which had been disclosed earlier in a US patent document simply because you could not have been expected to read it, and people would file and prosecute patent applications for wheels to prove the inadequacy of the system.
    Eliminating filing fees will bring all the cranks on board with their pro se applications for cancer cures, teleportation, zero energy devices etc. (There is no shortage even with the current fees).

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 23, 2017 08:52 pm

    And if International Standards is really the goal then why is the USA unlike any other?
    The same IP invalidated by PTAB is valid in EU because of DIFFERENT standards:

  • [Avatar for Anon]
    July 23, 2017 07:15 pm

    You are of course correct here – and I have often “lobbied” that a band-aid AFTER grant is not, does not, and cannot, create a quality patent in the first instance (as touted by those who pushed for this mechanism in the AIA).

    Some have even suggested that because of the budget process, having such a band-aid promotes even worse examinations (for a number of reasons, actually, even beyond “budget” ones).

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 23, 2017 04:43 pm


    Which is exactly why PTAB should be part of the examination process.

    The best way to prevent lackluster patents is to beef up examination.
    Stop bad patents before they get issued…and then pay up after infringement of it.

    If you put PTAB in examination and someone infringes then they can’t claim poor patent prosecution without looking foolish.

  • [Avatar for Anon]
    July 23, 2017 04:36 pm


    This is because the Supreme Court refuses to recognize that its actions ARE writing law.

    Instead, with a wink and nod (and some serious Gordian Knot tieing), they merely indicate that the “interpretation” of the law as written by Congress is being corrected (and that THAT “interpretation” has been the law all along).

    They do this because to even admit that they are writing law – statutory law – that they would be violating the Constitution themselves (separation of powers).

    As it is – and one reason why I advance the notion (a legal notion fully within the powers of Congress per that same Constitution) of instead of attempting to rewrite 101, that Congress instead reset the patent court landscape, re-establish a new (and untainted) Article III patent court (to preserve the actual holding of Marbury which establishes judicial review for the Article III branch of the government – and importantly does NOT require that such a review be performed by the Supreme Court), and remove patent cases from the Supreme Court (which is possible because patent cases are not cases of original jurisdiction FOR the Supreme Court).


    The reason why you cannot merely “amend claims” is because after grant, the property as determined by those claims really is a fixed property. Generally speaking (for example, not speaking about merely making a dependent claim into an independent claim), any new amended claim – to be properly recognized as property would need to undergo its own (new) examination.

  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 23, 2017 01:21 pm

    @Gene Quinn,

    I agree.
    And we can’t even modify claims.

    The standard rises to whatever defeats you.
    It’s grossly unfair because you just can’t win no matter what.

  • [Avatar for Gene Quinn]
    Gene Quinn
    July 23, 2017 12:56 pm


    You say: “the thing about standards is you don’t apply them retroactively.”

    That would seem logical, but that is not what happens in the patent space. When the Supreme Court changes the law, as they have done with respect to patent eligibility and upset three decades of well established law, they apply the changes retroactively. That is the most insidious part of what the Supreme Court is doing to patent owners and inventors.


  • [Avatar for Tesia Thomas]
    Tesia Thomas
    July 23, 2017 11:38 am

    Great article!

    I think the biggest pet peeve about this whole thing is that, OK. So what?
    US wants ‘International Standards’ now.
    But, the thing about standards is you don’t apply them retroactively.

    If US declared tobacco smoking illegal tomorrow, would it jail people who’d been smoking 20 years ago yet stopped?

    When ASTM or IEEE or another standard body updates a standard does the US fine or otherwise punish older products made and sold before the new standard was approved?

    Ex post facto anything is generally prohibited.
    The crappiest US patent are the first US patents because the standards for a ‘good patent’ have changed.
    And, those old patents have valid, expired claims yet…
    colorful drawings,
    written as letters by hand,
    too many drawings on one page,
    and a host of other things that would get outright rejections from those ‘terrible’ USPTO examiners today before the patent was even issued to become eligible for PTAB.