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But this number is probably greatly underestimated, as it only incorporates the first order loss in value. It does not include lost opportunities, disincentives to innovation, the inability to raise money due to the decrease in collateral, and the loss of jobs without those investments. We leave this analysis to economists in future studies. Given the huge impact of the AIA and its IPR proceedings on the US economy, on corporate valuations, and on the value provided to individual inventors, it is time for Congress to reevaluate this procedure to assure that a much greater percentage of patents survive the IPR process.
Only patents acquired in a purchase or a merger are included on a balance sheet. Additional research is needed to calculate this percentage more precisely. For small patent owners like myself with one or few valid patents on actual technology the moral is this: fool me once — shame on you, fool me twice — shame on me. We are not going to be fooled again into publicly disclosing important technological know-how in return for some piece of paper with zero value.
What now? In other fields people will do their best to keep everything a secret. From now on I will never distribute even compiled binary code to anyone, only as part of device with embedded hardware-enabled code encryption microprocessor. Some comments, such as 2. But I agree with Insignificant Dallasite that it is surprising this piece found its way into this otherwise august blog of venerable and academically-minded patent wizards and wizardesses. Baker, quoting Mr. And so the calculation we need is the cost to the economy of everyday people being ripped off by having to pay the ill-gotten royalties through the price add-ons.
What is even worse though, is that this miss creates a torrent of equally misbegotten anti-patent rhetoric.
I realize that Dennis can run his blog anyway he wants. But this article is the worst sort of snake-oil masquerading as statistical analysis. This loss almost entirely focuses on the patent holders. I thought the whole modus operandi of a patent tro ll was to settle? What benefit do they have for staying in litigation?
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This guys has no clue of what slav ery was like for slaves. And he is comparing slaves to patents. Experienced brokers are seeing that software patents with Alice issues are simply not being sold. And more to come. The infamous Judge Rich and his fellow patent huffers on the Federal Circuit tried to change that but they failed miserably. They failed so miserably, in fact, that their failure is ongoing and the mess they created is going to take years to clean up. The financial services industry would appear to disagree considering they are holding a conference this summer — for the 12th year in a row — on how to get patents.
Attendees of the conference include the same entity who filed the IPRs against the patents cited in the other post here. I wonder, how does the described change affect design patents? Are they more or less vulnerable than utility patents? Invalid patents stifle competition and need to be removed. Less patents equals economic depression. You silly anti-patenter. This article is truly absurd. It does not dispute the correctness of the decisions of the PTO in the relatively small number of challenges which are accepted for review which, of course, are appealable to the federal circuit.
Whatever value those claims have is derived from their ability, in most cases, to extract unearned revenues from parties who have developed successful products or, in others, to artificially inflate profits by deterring legitimate competition. Observe that the IPR standard of proof is much lower than that of court, where there is a presumption of validity that essentially gives a strong benefit of the doubt to the patent owner.
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The PTO standard of of proof only requires that the petitioner move the needle slightly over the midpoint. Add to this that the same people who decide to institute at a very much lower standard of proof also decide the final decision on essentially the same evidence. Add to this that the Federal Circuit on review is bound by the substantial evidence rule to the facts determined by the PTO. So how can you determine, realistically, whether the PTO decision is right when one compares the PTO decision to the hypothetical decision coming out of a court?
A. There are three ways you can create a Gates Notes account:
One can expect that with all the disadvantages given to the patent owner in the IPR, that in the ordinary case as patent will be declared invalid, while it would be sustained in court. The high presumption of validity presumes that the PTO did its job adequately. I can tell you from working there that this is not likely the case. And that is not because the examiners were not willing, but because the government considered the PTO only a first line defense against improper patents.
Even at the high end an examiner only gets around 15 hours to examine a patent once submitted. That is simply not enough time to comb through the trove of prior art, especially when applicants are allowed to be their own lexicographer and intentionally obfuscate. But bad habits can sometimes be broken. In that regard, keep an eye out for the decision in Circut Check v. This should be a Rule 36 affirmance of the district court judge claims invalid as obvious over thousands of years of prior art notwithstanding a verdict by a confused jury.
Actually, I think they are bemoaning the loss in value of patents whose value was artificially enhanced by the high cost of patent litigation which has been reduced somewhat by the use of the IPR and business method review.get link
a book review by Dr. Mark Kass: Make It In America: The Case for Re-Inventing the Economy
Contrary to other allegations, the actual Congressionally expressed purpose of reexaminations and other post-grant proceedings is to reduce patent litigation costs. Naturally that is hated by many patent litigators who were used to getting easy cash settlements in the vast majority of patent suits made to avoid massive discovery and other litigation costs before any prior art was ever considered by the Court. But the expressed intent of Congress is viewed as successful by many patent suit defendants. Companies in the automotive industry face patent litigation on a regular basis.
A frequent target of non-practicing entities, both car manufacturers and suppliers frequently get dragged into federal district court where the balance of hardships weighs heavily against the auto companies. To combat this inequality, the America Invents Act created new administrative review procedures, including inter partes review, that cost significantly less than litigation and focus solely on the validity of the patent.
Very quickly, auto companies have turned to these new procedures to combat unwarranted patent infringement claims. But patent defendants and potential patent defendants who vastly outnumber patent owners and always will are the wrong kind of people to pay attention to. Congress needs to pay attention to people like Richard Baker because Richard Baker is sooper dooper important. How do we know all this?