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Senators Tillis And Leahy Raise The Alarm About Judge Albright's Patent Forum Selling In Waco
from the good-for-them dept
Fri, Nov 5th 2021 09:31am - Mike Masnick
At times I've been at odds with Senators Pat Leahy and Thom Tillis regarding their view on intellectual property (though Leahy has a good history on patent law — Tillis… not so much). However, kudos to both of them for recognizing a very, very real problem in the way in which Judge Alan Albright has been engaged in what's been called jurisdiction selling.
If you don't recall, Judge Albright, who was a patent litigator before being appointed to the bench in Waco, Texas, went on tour advertising that patent plaintiffs should file in his district court (where he is the only judge). And, this resulted in a ton of cases all being filed there. And despite Supreme Court precedent that says judges need to be willing to transfer patent cases to proper venues, Albright has been thumbing his nose at higher courts and seeming to do everything he can to keep cases in his court.
And now, both Tillis and Leahy are ringing appropriate alarm bells over Albright's activities. Leahy and Tillis together have sent a letter to Supreme Court Chief Justice John Roberts to call out Judge Albright's behavior. It is not often that you see two Senators (who lead the IP subcommittee, no less) sending a letter to the Chief Justice to accuse a district court judge of being up to no good. It's quite a letter.
We write you to express our concern about problems with forum shopping in patent litigation.
Our understanding is that in some judicial districts, plaintiffs are allowed to request their case be
heard within a particular division. When the requested division has only one judge, this allows
plaintiffs to effectively select the judge who will hear their case. We believe this creates an
appearance of impropriety which damages the federal judiciary's reputation for the fair and equal
administration of the law. Worse still, such behavior by plaintiffs can lead individual judges to
engage in inappropriate conduct intended to attract and retain certain types of cases and litigants.
We are particularly concerned with this problem in the context of patent litigation. In the last two
years our nation has seen a consolidation of a large portion of patent litigation before a single
district court judge in Texas. In 2016 and 2017, this single district court heard only, on average,
one patent case per year. Last year, however, nearly 800 patent cases were assigned to one
judge in this district. This year, this district appears to be on track to have more than 900 cases.
This means that roughly 25% of all the patent litigation in the entire United States is pending
before just one of the nation's more than 600 district court judges.
The concentration of patent litigation is no accident. We understand that a single judge in this
district has openly solicited cases at lawyers' meetings and other venues and urged patent
plaintiffs to file their infringement actions in his court. Our understanding is that this single
judge has also repeatedly ignored binding case law and abused his discretion in denying transfer motions. This has resulted in a flood of mandamus petitions being fled at the Federal Circuit. The Federal Circuit has been compelled to correct his clear and egregious abuses of discretion by granting mandamus relief and ordering the transfer of cases no fewer than 15 times in just the past two years.
The extreme concentration of patent litigation in one district and the unseemly and inappropriate conduct that has accompanied this phenomenon are, in our view, the result of an absence of adequate rules regulating judicial assignment and venue for patent cases within a district. While we do not know of similar problems occurring in other single-judge districts, it is not hard to imagine similar scenarios arising under a set of rules that allows a plaintiff to effectively choose a particular judge to hear their case. In order to correct these issues, we request that you direct the Judicial Conference to conduct a study of actual and potential abuses that the present situation has enabled. Additionally, we ask that such a study consider and implement appropriate reforms that you can take to address this issue. Finally, we ask that such a report provide legislative recommendations to ensure this problem does not arise in the future.
While simply asking for a study and exploring reforms may not seem like a big deal, it does seem like a warning shot. If something isn't done to fix this by the Judicial Conference, then Congress may need to step in.
Meanwhile, on the same day Tillis sent another letter (without Leahy) to the current commissioner for patents at the USPTO calling out a separate issue involving Judge Albright. This gets a bit deep into the weeds, but, as we've covered, there have been ongoing fights over the whole inter partes review process. This is where certain patents can be challenged before a special patent review board — the Patent Trial & Appeal Board (PTAB) — which is charged with determining whether or not the original patent was granted in error. Patent holders hate hate hate hate the PTAB/IPR process and have been looking to kill it for some time. A key part of their argument is often that it involves two different processes — sometimes in parallel for killing a patent. The patent can be challenged both in court during a case, and before the PTAB via IPR. Last year, in the Apple v. Fintiv case, a rule was put forth that the PTAB would deny the IPR process to cases that were far enough along, to prevent two parallel challenges to the patent (with possibly opposing outcomes) happening at the same time.
This new letter from Tillis highlights how Albright appears to be using this ruling to block PTAB IPR challenges by scheduling unrealistic trial dates, which are then used to block the PTAB from going forward with an IPR.
As you know, Fintiv instructs the PTAB not to institute an Inter Partes Review ("IPR") procedure to challenge a patents validity if the panel deems it to be more efficient to allow parallel district court litigation to proceed based on a balancing test comprising six non-dispositive factors. Again, while I strongly support the policies underlying Fintiv, my concern relates to the PTAB's application of the second of these factors: the proximity of the court's trial date to the PTAB's projected statutory deadline for a final written decision. Specifically. I am concerned that the PTAB's historical practice of crediting unrealistic trial schedules. This has not only produced outcomes that are untethered from the policy underpinnings of the Fintiv rule, but it has also created harmful incentives for forum shopping and inappropriate judicial behavior.
The negative consequences are most pronounced in the Waco Division of the U.S. District Court for the Western District of Texas. The sole judge in that division schedules very early trial dates for all patent cases assigned to him. Often, these dates prove to be not just unrealistic, but they [sic] impossible to fulfill as multiple conflicting trials are frequently scheduled to occur on the same date before the same judge in the same courtroom. However, because PTAB panels interpret Fintiv to require scheduled trial dates to be taken at face value, panels have regularly exercised discretion to deny institution of IPRs in deference to litigation pending before that district.
Tillis doesn't hold back that this is mostly because of Judge Albright:
To be clear, Ibelieve judicial conduct is partly to blame for this situation. Once a case has been filed in the Waco Division, many defendants have found it all but impossible to persuade the division's sole judge to transfer the case to a more appropriate venue. In denying such transfers, the court has repeatedly ignored binding case law and abused his discretion. This misconduct has resulted in a flood of mandamus petitions being filed at the Federal Circuit, The Federal Circuit has been compelled to correct his clear and egregious abuses of discretion by granting mandamus relief and ordering the transfer of cases no fewer than 15 times in just the past two years.
Notably, in granting these petitions, the Federal Circuit has cast grave doubt on the reliability of the Waco Division's trial schedules and claims regarding efficiency of adjudication. The appellate court has strongly criticized the division's improper reliance on purportedly greater "congestion" in transferee courts in attempting to justify inappropriate denials of transfers under 28 U.S.C. § 1404(a). More specifically, the Federal Circuit has refused to credit the division's overly optimistic assumptions regarding the time-to-trial in cases, admonishing the division's judge that a "proper analysis" considers "the actual average time to trial rather than aggressively scheduled trial dates." Moreover, the circuit court has also implicitly questioned whether even amore accurate "proper analysis" based on precise caseload counts and the accurate time-to-trial statistics produces a reliable assessment of relative court congestion, characterizing this analysis as mere "speculation."
Tillis concludes by basically saying that the PTAB should ignore trial dates set by Albright in doing a Fintiv analysis:
Based on the facts currently available to me, it is difficult to imagine any plausible justification
for the continued reliance on the demonstrably inaccurate trial dates set by the Waco Division. I therefore ask that you undertake a study and review of this matter and consider whether Fintiv should be modified to account for unrealistic trial scheduling. I ask that you complete this review and implement appropriate reforms based on your findings by no later than December 31, 2021.
It's pretty incredible for a single judge to get this much attention, let alone two separate letters calling out his behavior. Of course, seeing as he's done little to change his behavior despite the Federal Circuit continuing to push back on his activities, it's unclear if any of this will change how Judge Albright acts.
Filed Under: alan albright, forum selling, forum shopping, inter partes review, ipr, john roberts, pat leahy, patents, ptab, thom tillis, uspto
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US Judge Gets It Right: AI Doesn't Get Patents
from the HAL-says-this-is-correct dept
Fri, Sep 10th 2021 05:40pm - Mike Masnick
A month ago, we wrote about a perplexing (and dangerous) decision down in Australia ruling that an AI can be listed as the inventor of a patent. As we had explained, there was a concerted effort by a small group patent lawyers and this one dude, Stephen Thaler, to seek out patents for "inventions" that an AI created by Thaler called Dabus ("device for the autonomous bootstrapping of unified sentience"). As we explained in that and earlier posts, the entire point of the patent system is to provide incentives to humans to invent. An AI does not need such incentives. As we've highlighted in the past, the USPTO and the EU patent office have both rejected AI-generated patents. Australia's patent office had done the same, but a judge there rejected that and said an AI could be listed as an inventor.
All of these situations involve Thaler/DABUS, as did a new ruling in the US which… thankfully has rejected the idea that an AI deserves patents after Thaler filed a lawsuit because of the USPTO rejection. I think there's a separate issue here: which is what standing does Thaler have in the first place? If the argument is that "DABUS" is the inventor, it seems that… um… only DABUS should have the necessary standing to challenge the rejection of its patent application. The fact that Thaler thinks he has standing more or less shows how ridiculous the entire claim is in the first place.
After going through the background of the case, and discussing what level of deference the USPTO deserves, Judge Leonie Brinkema gets straight to the actual point, which is pretty simple: AI doesn't get a patent.
Even if no deference were due, the USPTO's conclusion is correct under the law. The question of whether the Patent Act requires that an "inventor" be a human is a question of statutory construction. Accordingly, the plain language of the statute controls…. As the Supreme Court has held: "The preeminent canon of statutory interpretation requires us to 'presume that [the] legislature says in a statute what it means and means in a statute what it says there.' Thus, our inquiry begins with the statutory text, and ends there as well if the text is unambiguous."…
Using the legislative authority provided by the Constitution's Patent Clause… Congress codified the Patent Act in 1952… and has amended the Patent Act a number of times in the ensuing sixty years. In 2011, Congress promulgated the America Invents Act, which, as relevant here, formally amended the Patent Act to provide an explicit statutory definition for the term "inventor" to mean "the individual, or, if a joint invention, the individuals who invented or discovered the subject matter of the invention."… The America Invents Act also added that "joint inventor" means "any one of the individuals who invented or discovered the subject matter of a joint invention."… Additionally, Congress has required that "[a]n application for patent shall be made, or authorized to be made, by the inventor . . . in writing to the Director."… "[E]ach individual who is the inventor or a joint inventor of a claimed invention in an application for patent shall execute an oath or declaration in connection with the application" which "shall contain statements that–… such individual believes himself or herself to be the original inventor or joint inventor of [the] claimed invention."
See where this is going?
As the statutory language highlights above, both of the definitions provided by Congress for the terms "inventor" and "joint inventor" within the Patent Act reference an "individual" or "individuals."… Congress used the same term–"individual"–in other significant provisions of the Patnet Act which reference an "inventor," including requiring that "each individual who is the inventor or a joint inventor" execute an oath or declaration…
The court then notes that in analyzing other laws, courts have long said that "individual" means human. And it also highlights that the language in the Patent Act makes it clear that it was intended to apply to humans — humans who can make a declaration about their own beliefs.
Congress's use of the term "individual" in the Patent Act strengthens the conclusion that an "inventor" must be a natural person. Congress provided that in executing the oath or declaration accompanying a patent application, the inventor must include a statement "such individual believes himself or herself to be the original inventor or an original joint inventor of a claimed invention in the application."… By using personal pronouns such as "himself or herself" and the verb "believes" in adjacent terms modifying "individual," Congress was clearly reference a natural person.
Then there's a fun bit of judicial eye-rolling, stating: "having neither facts nor law to support his argument," the judge notes that Thaler's argument is basically "but this is good for innovation." But that's not going to fly (leaving aside the fact that allowing AI to get patents would be objectively terrible for innovation, it's also not how any of this works):
Plaintiff provides no support for his argument that these policy considerations should override the plain meaning of a statutory term.
It gets even worse for Thaler's arguments. He argued that the PTO hadn't properly considered the policy ramifications of not allowing AI to get patents, but as the judge notes, that's clearly not true. It had. And it rejected the dumb idea.
Specifically, the USPTO points to a conference on artificial intelligence policy it held in January 2019, and to requests for public comment "on a whole host of issues related to the intersection of intellectual property policy and artificial intelligence" it issued in August and October 2019. In October 2020, the USPTO issued a comprehensive report on those comments.
And… what did that report say?
Many commentators disagreed with plaintiff's view that artificial intelligence machines should be recognized as inventors…
Given how active Thaler and his lawyer friends have been around the globe, I imagine this is hardly the end of these campaigns. I imagine this ruling will be appealed, and how long will it be until some sucker of a Senator or Member of Congress, convinced by Thaler's nonsense, will introduce a bill to amend the Patent Act to enable AI patents?
Filed Under: ai, artificial intelligence, dabus, patents, stephen thaler, uspto
10 Steps The Biden-Harris Administration Should Take To Bring Equity To Our Patent System
from the fixing-the-patent-system dept
Fri, Jul 23rd 2021 01:37pm - Priti Krishtel and Tahir Amin
This post is one of a series of posts we're running this week in support of Patent Quality Week, exploring how better patent quality is key to stopping efforts that hinder innovation.
A couple weeks ago, President Biden signed an executive order focused on promoting competition in the interests of American businesses, workers, and consumers, emphasizing the need to tackle high prescription drug prices that harm 1 in 4 Americans. Earlier this year, the President also signed an executive order to increase racial equity across all federal agencies.
Few agencies are as ripe for this kind of transformation as the U.S. Patent and Trademark Office (PTO)—the federal agency that oversees patents, trademarks, and designs.
The PTO's work, which has often escaped scrutiny, is directly linked to issues of equity and rising prescription drug costs. As health and economic justice attorneys, we've worked for nearly two decades to increase equity in drug development and access, and have spent countless hours learning from patients, patent offices, community leaders, public health professionals, policymakers, scientists, economists and more. Based on our learnings from those most directly affected by the patent system, we offer ten actions the federal government should take to answer the President's calls to promote competition and advance equity across government that can transform the patent system in the public's interest.
1. Amend the PTO's mission to include equity
Equity doesn't currently factor into the PTO's decision making or operations, and that's no accident. Advancing equity is not part of the agency's mandate so equity concerns are not considered relevant. The PTO's mandate relies instead on this theory of change: granting intellectual property rights will spur innovation and economic growth, and people will be better off. This assumption has gone virtually unchallenged in the last 40 years, with no critical look at whether the current model is producing its intended benefits for everyone. And as America grapples with a drug pricing crisis, and vaccine nationalism threatens the global Covid-19 recovery, the consequences of this framework are becoming increasingly clear . If President Biden is truly serious about embedding equity into every agency, we will see the new PTO director amend the agency's mission accordingly. The agency's ability (and willingness) to implement the recommendations that follow will depend in large part on equity officially becoming part of its mandate.
2. Collect demographic data
The patent system has a long history of denying Black people opportunities for economic mobility. Even today, research by economist Dr. Lisa Cook indicates that less than one percent of patent holders are Black. In addition to racial inequities, gender inequities are present at the PTO. Women represent only 18 percent of patent holders, and leading economists predict it will still take 118 years to achieve gender parity in the patent system. We know about these disparities from academic studies and not from the PTO, which doesn't track demographic data. Earlier this year, the bipartisan IDEA Act passed out of the Senate's Judiciary Committee and companion legislation is pending in the House. This legislation would require the PTO to collect demographic information about applicants. Previously introduced in 2019, the bill's advancement in this Congress is promising, but doesn't guarantee passage given the political gridlock plaguing DC. In the meantime — since it can't fix what it doesn't measure — the incoming PTO director could voluntarily start collecting this data.
3. Redefine the "customer"
The charter of the PTO's Public Advisory Committee, which advises the director on patent and operational issues, states that the Committee must "represent the interests of diverse users of the USPTO." But the PTO defines its users narrowly, as the entities or individuals using the system for patents and trademarks. As a result, the Committee is composed primarily of representatives from corporations. People with non-commercial perspectives—members of historically marginalized communities, public health experts, and patient advocates—who have a tremendous stake in how monopolies operate, for example, don't traditionally have a voice in decision making. That naturally leads to a system in which the public interest is overshadowed by commercial concerns. The PTO should redefine its customer base to include not just those who are directly applying for patents and trademarks, but also those whose lives stand to be fundamentally altered by these decisions. The deadline recently passed on the PTO's request for nominations for new Committee members; the time is especially ripe for it to bring in new voices to better represent the public's perspectives.
4. Raise the bar for what gets patented
Over the last 30 years, more and more patents have been sought and granted for things that aren't novel inventions. Recent controversies illustrate the point well: these patents are often sought and granted for products derived from ancestral knowledge from countries with predominantly Black and Brown populations—the Colombian sweetener panela, or baby wraps, for example. The PTO should not be granting patents for knowledge appropriated from beyond America's borders.
The consequences of setting the bar too low have been dire. 13% of Americans report losing a loved one in the last five years due to high drug costs, and people of color are twice as likely to have lost someone. Patent monopolies, which are increasingly being used to block competition, are a root cause of this crisis, and between 2006 and 2016, the number of drug patents doubled. Our research demonstrates that the ten best-selling drugs in America each have on average 131 patent applications, and monopoly protection of up to 38 years. At the same time, nearly 8 out of 10 medicines associated with new drug patents are for existing medicines, like insulin or aspirin, rather than new ones. The longer the monopoly on a single medicine remains, the longer prices stay high or continue to rise.
It's long past time to raise the bar so that only things that are truly inventive are rewarded with a patent. For example, combining existing drugs or switching dosages should not receive additional patent protection. The administration could recommend that Congress amend the patent law to prevent weak patents from being granted.
5. Change the PTO's financial incentives
The majority of the PTO's funding comes from fees paid only if a patent is granted, which means the agency's revenue is directly linked to the number of patents it grants. This creates a financial incentive to grant as many patents as possible, even if claims to inventiveness are weak.
At least one study found that the PTO grants patents at higher rates when revenue is strained, suggesting that patent decisions are being influenced by factors other than inventiveness. Over the last decade, over 40 percent of patents challenged after having been granted are invalidated either in whole or in part. Research shows that the push to grant ever-more patents puts a strain on patent examiners, who have less and less time to conduct a thorough review (today, the average patent review time is just 19 hours). Over the last 27 years, the PTO has granted as many patents as it had in the previous 155 years. The proliferation of low-quality patents harms people in a range of different ways, including driving up prescription drug costs.
The administration could investigate the link between revenue shortfalls at the PTO and the volume of patents being granted, and evaluate alternative funding streams for the PTO so that the agency's financial sustainability isn't tied to the volume of patents that it grants.
6. Modernize laws that are not serving the greater public good
The Bayh-Dole Act, the Hatch-Waxman Act, and the Federal Courts Act were enacted to increase innovation and economic growth. But these laws have also enabled the corporatization of medical research in ways that are deeply harmful to the public. For example, publicly funded research in universities is regularly transferred to pharmaceutical companies with few, if any, conditions to assure access to the resulting medical products. The public ends up paying twice—with tax dollars used for publicly-funded research and development, and through the often exorbitant price paid at the pharmacy. These outdated laws and other legal rulings have resulted in everything from skyrocketing drug costs, to the non-consensual appropriation of tissue from Americans like Henrietta Lacks and John Moore. (Their stories, and the ethical questions they raise, have been explored in-depth by bioethicist Harriet Washington).
The administration should establish a White House task force to assess how societal harm has offset the desired gains from these 1980s-era laws. The task force should include dedicated staff with a mix of patent and equity expertise, including staff from the Federal Trade Commission, the White House Office of Science and Technology Policy, the National Economic Council, and the Council of Economic Advisors. Ultimately, the task force would produce a report that examines the underlying impacts of these laws, and provide recommendations for legislative and executive action that would reform the patent system to enhance benefits to society.
7. Reduce the cost of patent challenges
Challenging a patent can be prohibitively expensive. Filing fees alone cost upward of $41,500 per patent, compared to the significantly lower financial cost of filing patent challenges in Europe and elsewhere.
In a system heavily weighted in favor of commercial actors, legally challenging harmful patent monopolies that may have been incorrectly granted is one of the only avenues for creating equity in the market.
We know this from firsthand experience. Our organization has, in collaboration with patient advocacy groups around the world, successfully mounted legal challenges to unjust patents. These challenges have made the market more competitive, saved health systems billions of dollars, and made medicines more accessible to millions of people across Africa, Asia, and Latin America. Americans deserve the same opportunities to participate in a system that directly affects their health and wellbeing. The PTO should bring its practices in line with other patent offices worldwide and reduce the financial costs associated with challenging a patent.
8. Reverse "discretionary denial" policies
Bipartisan legislation passed in 2011 allowed any person to mount administrative challenges to patents after they were granted. Since then, opponents have repeatedly sought to weaken the authority of the Patent Trial and Appeal Board (PTAB), the body tasked with reviewing patent challenges. For example, the most recent PTO director, Andre Iancu, restricted participation by expanding the circumstances in which the agency could unilaterally decline to review patent challenges. "Discretionary denials," as they are called, were rare in 2016 but have surged in recent years. Blocking access to one of the agency's already limited avenues for public participation will lead to more weak patents, undeserved monopoly power for corporations, and less access to medicines and other goods that benefit public wellbeing. The administration should reverse recent policies that effectively shut the door on public participation in the patent system, and accept more challenges to weak patents.
9. Support and invest in increasing access to COVID-19 medical products
Wealthy governments have swallowed up the vast majority of existing COVID-19 vaccines stock, leaving countries with predominantly Black or Brown populations virtually nothing. More than 85 lower-income countries will not have widespread access to coronavirus vaccines until 2023, which increases the risk that new vaccine-resistant variants will emerge. Indonesia and twenty African countries are the latest to feel the crushing blow of the pandemic as they face an overwhelming surge of cases without the resources and tools necessary to avoid preventable hospitalizations and deaths. These inequities are echoes of the early HIV/AIDS epidemic, a moral failure in which medicines existed to save people's lives but were inaccessible to the vast majority of high-burden countries in the Global South.
The World Trade Organization (WTO) is currently considering a proposal by South Africa and India to waive certain intellectual property provisions related to the "prevention, containment and treatment of COVID-19." The U.S. has already voiced its support for the waiver, which if adopted would allow drugmakers in other countries to manufacture desperately needed vaccine supply and other medical products. While the waiver negotiations continue to unfold, the U.S. should remain a steadfast champion of global access to COVID-19 medical products—including vaccines—and press further. It should also compel U.S. pharmaceutical companies that used taxpayer funding to develop a vaccine to share that technology and know-how with manufacturers in other countries. These measures would set a precedent for global cooperation that would end the current pandemic sooner, and better prepare us for the next one.
10. Create a new Office of Technology Assessment
New technologies, like artificial intelligence and gene editing, are raising urgent questions about ownership, inventiveness, equity, and ethics. In Congressional testimony, Dr. Shobita Parthasarathy, a professor of public policy at the University of Michigan, outlined the need to incorporate equity considerations earlier and more robustly into the innovation pipeline. President Biden should request sufficient funding for a new Office of Technology Assessment in their annual budget request to Congress (an office of the same name was defunded in 1995). Rampant misinformation on Facebook, disparities in the use of facial recognition software, and other ramifications of emerging science and technology underscore the need for a body dedicated to preventing prospective future harm. This reimagined office would engage experts and members of the public to better understand the potential consequences of new technologies, and advise the administration and Congress on how to mitigate inequitable and other socially damaging outcomes.
As the Administration commits to increasing equity and lowering drug prices, it cannot do so without transforming our nation's patent system. Centering equity within an agency that has historically lacked it is no small task. It requires a commitment to challenge the status quo in small ways and large, and a shared belief that all our political and economic systems are stronger when they are truly inclusive. These solutions do not stand alone—they must all be integrated into the PTO's structure and ethos to truly effect meaningful advances. By acting on these recommendations, President Biden can improve the lives of millions of Americans, and show bold global leadership in creating an economy that works for all.
Priti Krishtel and Tahir Amin are the co-founders and co-executive directors of the Initiative for Medicines, Access & Knowledge (I-MAK), a nonprofit organization working to address structural inequities in how medicines are developed and distributed. They are participating in Patent Quality Week, with Engine Advocacy and others across the country, to encourage conversations on quality and balance in the patent system. Learn more here.
Filed Under: equity, incentives, ipr, joe biden, office of technology assessment, ota, patent challenges, patent quality, patents, public good, uspto
Many Automakers Rely On Patents, But That Doesn't Mean All Patents Are Good For Automakers
from the patent-quality-week dept
Wed, Jul 21st 2021 01:56am - John Bozzella
The auto industry is experiencing a transformative period of innovation that will make future mobility even cleaner, safer, and smarter. Auto companies are investing billions of dollars in electrification and other fuel-saving technologies, and by 2023 the industry will have invested $250 billion toward this goal. Advanced driving assist features ? such as automatic emergency braking ? are already helping to improve safety. And automated vehicles can create the next big advancement in vehicle safety and expand mobility for the elderly and those with disabilities.
The auto industry is an innovation leader. As major inventors, auto companies own hundreds of thousands of patents and rely on those patents to protect their innovations, which incentivizes more developing and production of cutting-edge automotive technologies. That is why auto companies have a strong interest in ensuring that the patents are high quality and receive robust legal protections.
At the same time, auto companies are also increasingly subject to attacks from bad actors who allege patent infringement using low-quality patents that should never have been issued in the first place. In the end, courts find many of these patents invalid, but patent litigation raises costs for consumers and everyone else and is time consuming. The truth is that every moment and dollar auto companies waste on these lawsuits would have been better spent on making cleaner, safer, and smarter cars. Focused and targeted efforts to increase the overall quality of issued patents would reduce the number of low-quality patents that can be used to hamper innovation. High quality patents are a key contributor to our ability to achieve our important environmental and safety goals.
To help achieve this goal, the U.S. Patent and Trademark Office (USPTO) should institute policies to improve patent quality during the patent examination phase. For example, important reforms can be made to shift the focus at the USPTO to maximizing patent quality rather than maximizing the rate of patents issued. Other changes, such as increasing the number of hours an examiner spends reviewing a patent application, may also be necessary to increase patent quality. Not all of these changes may be possible for the USPTO to accomplish on its own, so it will be important for the next USPTO director to work with Congress to identify those reforms necessary to improve patent quality.
It is also critical that the inter partes review (IPR) process, which was created by the bipartisan America Invents Act in 2011, is protected and preserved. The IPR process has worked as Congress intended and provides a fair, efficient, and cost-effective mechanism to evaluate and reassess whether an issued patent is valid. Abolishing or otherwise limiting access to IPR would almost certainly result in increasing litigation costs, slower adjudication, and more frivolous lawsuits. That would stifle innovation and dynamism in the auto industry, harming auto manufacturers and consumers alike.
The auto industry relies heavily on the patent system, which is vital in promoting innovation and economic growth. Promoting and protecting high quality patents, while weeding out abuse in the system, will help the auto industry continue to use leading-edge innovation, constant creativity, and investments in research and development to bring the next generation of breakthrough automotive and mobility technologies to the U.S. market. Patent Quality Week brings important awareness to the value of quality and balance in patent policy. Conversations around quality and balance in patent policy are necessary in protecting innovation in the automotive industry and continuing economic growth.
John Bozzella is the president and CEO of the Alliance for Automotive Innovation, which represents 99 percent of the automotive industry.
Filed Under: automotive, inter partes review, ipr, patent quality, patent quality week, patents, uspto
Supreme Court Says Patent Review Judges Are Unconstitutional, But It Can Be Fixed If USPTO Director Can Overrule Their Decisions
from the well-that-creates-some-other-problems dept
Wed, Jun 30th 2021 03:33pm - Mike Masnick
As you may recall, a few weeks ago I wrote about how Congress was asking the GAO to investigate whether the director of the US Patent & Trademark Office had been interfering in determinations made by the Patent Trial and Appeal Board (PTAB). I'm not going to go into all of the background again (please read the original for that), but under the America Invents Act, a process for reviewing patents after they were granted was set up, known as the Inter Partes Review (IPR) process. This was important, because the granting of patents is a non-adversarial process, where patent examiners are not given very much time to actually review everything. So the IPR process allowed those (especially those with prior art) to kick off a process by which the PTAB would recheck to see if the original examiner made a mistake in granting a 20 year monopoly to someone.
Unfortunately, because the members of the PTAB are designated as Administrative Patent Judges (APJs), there was the question of whether or not they needed to be appointed by the President with Senate confirmation to abide by the Appointments Clause of the Constitution. That question has been hanging out in the Supreme Court for many months — with the decision finally coming down this week. In arguing against this notion, the USPTO itself had claimed that the APJs were "interior officers" that don't need Senate confirmation, and part of their "proof" was that the Director of the PTO could review their decisions. This raised some alarms in Congress, because it certainly wasn't their intention (from everything stated so far) to allow the Director of the PTO to put their finger on the scale of what is and what is not patentable.
The full opinion from the Supreme Court is a bit of a mess — with different Justices signing onto different parts. But the key bits to pull out of this are that the Supreme Court found that the APJs are (or have been) "Principal Officers" meaning they should have been appointed by the President and confirmed by the Senate.
History reinforces the conclusion that the unreviewable
executive power exercised by APJs is incompatible with
their status as inferior officers. Since the founding, principal officers have directed the decisions of inferior officers on
matters of law as well as policy. Hamilton articulated the
principle of constitutional accountability underlying such
supervision in a 1792 Treasury circular. Writing as Secretary of the Treasury to the customs officials under his
charge, he warned that any deviations from his instructions
?would be subversive of uniformity in the execution of the
laws.? 3 Works of Alexander Hamilton 557 (J. Hamilton ed.
1850). ?The power to superintend,? he explained, ?must imply a right to judge and direct,? thereby ensuring that ?the
responsibility for a wrong construction rests with the head
of the department, when it proceeds from him.?
However, in then immediately inserts its own remedy, saying that everything is fixable if the Patent Office Director actually can review the IPR decisions.
In sum, we hold that 35 U. S. C. §6(c) is unenforceable as
applied to the Director insofar as it prevents the Director
from reviewing the decisions of the PTAB on his own. The
Director may engage in such review and reach his own decision. When reviewing such a decision by the Director, a
court must decide the case ?conformably to the constitution,
disregarding the law? placing restrictions on his review authority in violation of Article II
So, the good news here is that the important PTAB/IPR process remains alive. But it does seem quite worrisome that the end result is that any Director of the Patent Office can now step in and overrule the PTAB. One would hope that the political ramifications of doing so would prevent it, but it does seem that it's now possible that a Director who just doesn't like the whole IPR/PTAB process (and there are many patent system fans who hate it) could just automatically deny every single IPR.
And that seems very worrisome. Of course, all of this could be solved by making the APJs Senate confirmable, but apparently no one wants to bother with doing that. Alternatively, we could rethink the entire patent approval process altogether, so that it doesn't need to go back and realize it granted 20 year monopolies for no good reasons… but, you know, that would take actual effort.
Filed Under: appointments clause, oversight, patent appeals board, patent review, patentability, patents, ptab, supreme court, uspto
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Congressional Committee Calls On GAO To Investigate Whether Patent Office Director Is Putting Thumb On The Scale Of Patent Reviews
from the very,-very-interesting dept
Mon, Jun 7th 2021 09:33am - Mike Masnick
The chair and ranking member of the House IP subcommittee that covers intellectual property is now asking the Government Accountability Office (GAO) to investigate whether or not the Director of the Patent Office is pressuring the important Patent Trial and Appeal Board (PTAB) to make certain decisions on the validity of patents. There's a lot of important background here, but it's all kind of fascinating how two big legal issues are coalescing in this result, in which the USPTO's own legal arguments may reveal how the Director has been unfairly influencing decisions. The two key points to understand are (1) the Inter Partes Review (IPR) process, and (2) questions about the constitutionality of certain appointments — both of which are issues that we've covered for years, that seem deep in the weeds, but turn out to be quite important.
First, we've got the IPR process. This was an effort that was put in place with the America Invents Act (AIA) back in 2012. It was a recognition (FINALLY) that the Patent Office was approving way too many bad and overly broad patents, that were then being abused to shake down companies. The fact that the USPTO was approving so many awful patents was a built in bug (or feature?) of the way the patent system works.
The process for getting a patent is not truly adversarial. You have the party seeking the patent, and the examiner. Yet examiners were often judged on how many applications they dealt with, rather than the quality of the patents they approved. So there's no party arguing for why something does not deserve a patent. In theory, the examiner might do that, but the incentive structure there is broken as well. There is something called a "final" rejection from a patent examiner, but it's not actually final, since the party seeking the patent can continue to file renewed requests/appeals forever. And with the Patent Office getting heat for having too long a backlog, sooner or later, there are strong incentives for the examiner to just approve a patent to get it off his or her docket.
Rather than fix the many inherent problems in this setup, the AIA introduced a compromise that was better than nothing. It would create this special PTAB, which anyone could use to challenge a previously granted patent. At that point (usually once someone started threatening or suing over a patent) then finally, there would be a more careful review, with an adversarial process, to examine whether or not the patent should have been granted in the first place. Patent trolls and their friends have hated the whole IPR process since it began and have tried a variety of ways to challenge it. In 2018, the biggest legal challenge to the whole IPR process was rejected by the Supreme Court, who said that of course the PTO can invalidate the patents it never should have granted.
But that hasn't stopped the efforts by trolls and friends to invalidate the IPR process. The latest attempt is in the US v. Arthrex case, in which it is argued that the "judges" on the PTAB are unconstitutional for violating the Constitution's appointments clause. That case was heard by the Supreme Court a few months ago and a ruling should be coming soon.
And that takes us to the other deep in the weeds issue we've talked about for over a decade: whether or not appointments to various quasi-legal tribunals within the executive branch violate the Constitution's appointments clause. The Appointments Clause says certain "principle officers" of the government, including judges, need to be nominated by the President and approved by the Senate. There have been questions for years about whether or not certain roles that were appointed by various department heads violated this clause. Back in 2012, for example, a court said that the Copyright Royalty Board nominations were unconstitutional (though the court then immediately worked around that issue with a sort of wink and a nudge).
So, now the question at the heart of Arthrex is whether or not the PTAB judges are constitutionally appointed, since they're appointed not by the President with the consent of the Senate, but directly by the director of the Patent Office. And, in that case, the US government (defending the constitutionality of the PTAB judges) claimed that they were not principal judges, but rather "inferior officers" who could be appointed by the PTO director. That's all very interesting, but a key argument made by the government in defending that was that the PTO Director controls the PTAB judges, including how they decide cases.
And while that may be necessary to prove that their appointments were constitutional under the Appointments clause, it rang some alarm bells because it sure as hell suggested that the PTAB might be deciding whether or not patents are valid not based on the evidence before it but based on what the PTO director wanted. And that would be a big problem.
And, so that finally gets us to the latest bit of news, in which Reps. Hank Johnson and Darrell Issa, a bipartisan sort of odd-couple who head up the IP subcommittee are asking the GAO to look into whether or not the USPTO director is actually pressuring the PTAB judges into deciding the validity of patents one way or the other:
Recently, the Supreme Court granted certiorari in United States v. Arthrex, Inc., an appeal from a Federal Circuit decision that determined that APJs were ?primary officers of the United States? and, thus, unconstitutionally appointed without Senate confirmation. In that appeal, the government?s position is that APJs are instead ?inferior officers? who do not require Senate confirmation because they are subject to significant oversight and control by the Director of the USPTO, who is a Senate-confirmed political appointee. The government argues that this control includes, for example, the ability of the Director to dictate the outcome of PTAB cases by controlling which APJs decide which cases (i.e., APJs who will decide each case as the Director wishes) and by providing policy directives that APJs are obligated to follow.
If the government?s arguments are accurate, PTAB cases may have been decided based on factors outside of the evidentiary record and public legal authority (e.g., statutes, regulations, court precedents) available to the parties. This possibility raises potential due process concerns and would be inconsistent with the intent of Congress in enacting the AIA.
There is then a long list of fairly specific requests for the GAO to investigate that could raise some eyebrows. Here are just a few:
The policies, written or unwritten, that exist at the USPTO to effectuate each of the above mechanisms, as well as the statutory or other legal authority that forms the basis for each of the above mechanisms.
How APJs understand the role of the Director in the decisions they reach in AIA cases, including APJs? awareness of the above mechanisms and associated policies and the number of APJs who have been subject to one or more of them. Also, the impact that the exercise of these mechanisms and policies have had on the decision-making of APJs in AIA cases.
Whether any APJs have objected or dissented, or attempted to object or dissent, to the above mechanisms and policies, or the exercise of those mechanisms and policies in specific AIA cases. If so, the results of those objections and the processes that were made available to APJs to object or dissent. Also, how APJs understand the extent to which they may object or dissent.
How often the Director, or a designate thereof, has directly influenced or changed a decision in a specific AIA case (i.e., inter partes review, post-grant review, or covered business method review). Also, the way those decisions were influenced or changed by the Director, and the mechanisms that were used to influence or change those decisions.
Whether specific notice was provided to the parties in those cases indicating that the Director, or designate thereof, was influencing or changing a decision in the case, and the information included in any such notice. Also, whether the decisions themselves document that influence or change, and explain the reasoning or justification for it.
In other words… either the Patent Office director is unfairly controlling or strongly influencing PTAB IPR decisions or the Patent Office lied to the Supreme Court. The most charitable explanation, of course, is that the PTO director could step in and order certain decisions, but has chosen not to. But even that would be worrisome and problematic. None of this looks particularly good for the PTO.
Filed Under: appointments, darrell issa, gao, hank johnson, inter partes review, ipr, patents, ptab, uspto
Senator Chris Coons Says No One Who Has Ever Criticized Intellectual Property Can Head The Patent Office
from the and-biden-agrees dept
Thu, May 27th 2021 09:35am - Mike Masnick
There had been some talk that we might, once again, get someone to head the Patent Office who actually understood and appreciated the many trade-offs associated with monopoly rights around inventions. But apparently that's not happening. There's an article in The American Prospect saying that Senator Chris Coons — one of the more maximalist of the copyright and patent maximalists in Congress — has secured some sort of ridiculous deal with the Biden administration that no one who has ever criticized patents will be allowed to run the US Patent & Trademark Office.
Patents have not historically animated sustained intraparty fights that spill out into headlines. But Coons?s pro-IP, pro-patent stance, and his long friendship with the president, has elevated the issue, and turned the selection of the next director of the U.S. Patent and Trademark Office (USPTO) into a flashpoint. Coons has been aggressive in working with the White House to secure a director who shares his viewpoints, and his top candidates have represented patent owners as lawyers or trade group leaders. According to sources on Capitol Hill and from outside groups, Coons has claimed that he was granted the power to make the USPTO choice in exchange for staying in the Senate. Coons had been seen as a potential pick for secretary of state.
Other members of Congress, including Sen. Patrick Leahy (D-VT), chair of the Senate Judiciary Subcommittee on Intellectual Property, have stressed in their conversations with the White House the need to balance the patent system to prevent abuse. Advocates have also asked the White House to ?overrule efforts? by Coons and his allies to put forward a USPTO director nominee who is ?aligned with the pharmaceutical industry or other intellectual property maximalists.?
First, it's not surprising that Biden would go along with this. While Biden doesn't have much of a track record of interest on patent issues, he was reliably one of the most maximalist Senators on the copyright front — so it's not surprising that he'd be amenable to such a deal, even as many others in his party recognize the problems with such an approach.
The title of the article is somewhat ridiculous: "Chris Coons Working to Install Business-Friendly Candidate for Key Patent Position." Being "pro-patent" is not "pro-business." Patents and patent trolls are quite frequently anti-business. They are anti-competitive, and frequently anti-innovation — being used to stop, block, and suppress the companies who actually make stuff (or make stuff better). It's not pro-business to be pro-patent. It's pro-monopoly, and pro-patent lawyer.
And here, it gets even more insane. The article notes that Coons, along with Senator Mazie Hirono, sent a truly ridiculous letter to President Biden and VP Harris, saying that no one who has criticized patents should be allowed to be the USPTO director.
… the USPTO Director serves as one of our leading ambassadors for intellectual
property and innovation. A history of criticizing or weakening American intellectual property
rights will undermine his or her ability to advocate for strong protections and enforcement
mechanisms with our trade partners.
That's just ridiculous. Only installing someone who has never criticized the patent system means installing a foolish, ignorant person who refuses to recognize the various trade-offs associated with the patent system. Hell, even Coons himself is a critic of the patent system. He's introduced bills to change the patent system (notably, to change them for the worse, but still, to change them).
In the letter, Coons also makes a bunch of assertions that are simply laughable to anyone even remotely familiar with the problems of over patenting, patent abuse and patent trolls:
… the USPTO Director should understand that clear, predictable, and enforceable intellectual
property protections drive economic growth, foster entrepreneurship, create jobs, and improve
our quality of life. Our intellectual property systems have long enjoyed a reputation as the
international gold standard, and this has allowed the United States to leverage the incredible
talents of our people to lead the world in technology and creative enterprise. The USPTO
Director must ensure that risk takers can access the research and development investments
necessary to challenge incumbent players, bring disruptive technologies to market, and win the
global race to develop the next generation of personalized medicine, clean energy technology,
quantum computing, wireless communications protocols, and artificial intelligence.
Anyone who thinks that patents are what is necessary to drive any of those industries has no idea what they're talking about. Patents and patent trolls threaten the innovation in those industries.
Of course, some of this may be in Coons' background. His one private sector job was as in-house counsel for W.L. Gore, makers of GoreTex (I'm sure it's a total coincidence that Coons' stepfather founded the company). That company holds a bunch of patents and has been involved in a series of patent fights. And Coons apparently still owns millions of dollars in stock from the company.
Of course, many of those fights seems to involve accusations that W.L. Gore infringed on the patents of others — including one somewhat infamous case that literally was over four decades in the making and which did not end well for Gore. Given that experience alone, you might think that Coons would recognize that patents are a two-edged sword. And even if you support them in some circumstances, they clearly can be used as a blunt weapon against innovation and product development, and as a costly attack on innovative companies.
Separately, of course, there's the issue that Coons represents Delaware — and while the Texas courts have become famous as patent troll breeding grounds, lots of folks know that Delaware courts also are favored by patent trolls.
The second most common venue for nonpracticing entity litigation is Delaware: It alone sees as many cases as the next six most popular venues combined ? over 20% of cases overall. And as we?ve computed using data from RPX, non-practicing entities? Delaware patent suits end with loss or dismissal only 8% of the time, a scant difference from the 4% rate in Marshall.
Either way, it's unfortunate that his view on patents seems so skewed and so dangerous — and that he was apparently able to cut some sort of deal with the Biden administration on who should run the USPTO. An ideal leader should be one who recognizes the competing interests with patents, not someone who slavishly praises patents, even the parts that are so problematic.
The Prospect article also floats some names that Coons has been suggesting — and they include literal patent trolls and patent troll lobbyists. Which is… not a good look at all. And that he has apparently tried to shoot down two candidates who would be excellent: Colleen Chien of Santa Clara University Law School and Arti Rai of Duke University. Both have done lots of research and have written important papers on the patent system, while noting some of the problems with them. But, perhaps for those reasons, Coons is trying to block them from being appointed and make sure a patent troll or, at least, a patent troll friendly lawyer gets put in place instead.
That all of this is happening against the backdrop of a pandemic — let alone one where the overuse of patents to block vaccines and treatments has been a major concern — makes you wonder: is Coons truly interested in what's best for American innovation… or what's best for his W.L. Gore stock?
Filed Under: biden administration, chris coons, criticism, patent trolls, patents, uspto, uspto director
Companies: w.l. gore
Random Jackass Attempts To Trademark 'Mayor Of Mar-A-Lago' In The Most Hilarious Way
from the not-how-it-works dept
Wed, Feb 17th 2021 08:02pm - Timothy Geigner
For years now, I have railed on the USPTO for its overly permissive posture when it comes to granting trademarks. The whole thing is far too easy, with far too little concern shown by examiners as to how distinct or useful proposed marks actually are. All of that being said, there are still some hoops you have to jump through to get a trademark. And there are some rules governing how to get through those hoops.
It appears someone needs to give Natale Passaro some lessons in how trademarks work, then. See, Passaro recently filed for a trademark on the term "Mayor of Mar-A-Lago." The proposed classes for the mark are to be for "shirts" and "consulting services". Part of the application requirements, however, is documentation on "specimen of use." This is basically the USPTO asking the applicant to show evidence of the mark's current or proposed use.
A specimen of use is a real-world example of how the mark is being used on goods and/or services. A real-world example means that it is an actual object that bears the mark, not just a photo or drawing of the mark. For goods, a person can submit tags, instruction manuals, containers, labels, or packaging materials.
What the Passaro submitted for his specimen, um, doesn't cut it.
Mar a Lago Club, Inc. (Florida)
applies to register
MAYOR OF MAR A LAGO
as a trademark for
consulting services in the field of hospitalityhttps://t.co/v1aVTdbSvI#trademarks pic.twitter.com/SeYjfWvxNb
— Trademarks Are Magic (@TimberlakeLaw) February 16, 2021
Now, I truly wish that it was Donald Trump's hand that scrawled the phrase over a picture of a building at the club and a cartoon depiction of himself, because that makes all of this funnier. Unfortunately, it appears that this application came instead from someone just trying to cash in on the club and former President. That this initially confused a bunch of people, including me, is also a pretty good argument against any approval for this trademark.
But, again, that isn't how this works when it comes to the specimen of use. The USPTO is not going to take some scribbles of a proposed… I don't know, logo? That simply doesn't work for a specimen of use, it isn't in any way the behavior of a professional organization, and it calls into question just how serious this trademark application is if this really is the best Passaro can do on a trademark application. Given that this all also seems to be some strange attempt to get Mar-A-Lago incorporated as its own township and out of the jurisdiction of Palm Beach for… reasons, this all probably doesn't bode well for the success on that effort, either.
Filed Under: donald trump, mar a lago, mayor of mar a lago, natale passaro, trademark, use in commerce, uspto
All Hands On Deck: Ensuring Innovation, Not Just Patents, From All
from the innovation-is-not-just-patents dept
Fri, Jan 29th 2021 02:30pm - Josh Landau
As the Iancu era at the U.S. Patent and Trademark Office comes to a close, one of the USPTO's initiatives has focused on promoting diversity in patenting. The newly established National Council on Expanding American Innovation, and the associated USPTO request for comments on a national strategy for expanding innovation, focus on having under-represented groups more involved in creating patentable inventions.
That's a laudable goal. But we shouldn't be aiming just to have more under-represented groups receive patents. More patents doesn't necessarily mean more innovation, it just means more patents. Instead, we need to ensure that those groups are both provided the support to innovate and that their innovation is recognized.
To do that, we have to change how we talk about innovation. In a recent article, Prof. Anjali Vats notes that the "stories that people tell about invention in the U.S. continue to focus on white men – the Benjamin Franklins, Thomas Edisons and Elon Musks – without affording women and people of color the same larger-than-life status." Often, those stories focus on lone individuals, not teams. Those failures lead to barriers to innovation by under-represented groups whose contributions may not fit that model.
As one example, many—including USPTO Director Iancu—like to lionize Thomas Edison as the prototypical heroic inventor. They point to him as a role model. But Edison is a perfect example of the problems with the "heroic inventor" story. Edison employed a large staff who did much of the work of his inventions—without those "muckers", he'd have gotten much less done. And of course, Edison was neither the inventor of electric light nor the inventor of a practical light bulb. Alessandro Volta, the namesake of the word "voltage", generated light from electricity 80 years before Edison did. Humphrey Davy invented the electric arc light, which was in wide use in the 1800s, although it was impractical for home lighting.
And while Edison devised a carbon filament bulb, his bulbs only burned for a few days before they burnt out. It was Lewis Latimer who devised a process for making a filament sufficiently useful to allow electric lighting to become widespread. Latimer also wrote the first technical book regarding electric lighting. He even drafted the drawings for Alexander Graham Bell's telephone patent—an application which beat Elisha Gray's competing application to the patent office by only a few hours.
Latimer was African-American, the son of an enslaved person. His story isn't often mentioned alongside contemporaries like Edison or Bell when talking about American inventors, despite having been as or more responsible for the invention of electric light. Similar "hidden figures" include Katherine Johnson, a NASA engineer, and other women who worked as "computers" for the Army, for astronomical calculations, and to support the Works Progress Administration.
While these stories have been popularized, how many more unrecognized innovators are out there whose contributions were never recognized because they didn't fit the model of "lone inventor creates idea and patents it"? How many more innovations could we have if that wasn't what was promoted as the primary model for innovation?
Instead of focusing on promoting patenting activity and lionizing heroic inventor stories, let's try to promote innovation and recognize forms of innovation that don't fit neatly into the patent framework. Collaborative research, open-source and open-science models, and other such forms of innovation are at least as important as patents—let's give them at least as much priority.
Originally posted to the Patent Progress blog
Filed Under: innovation, patents, uspto
People With Silly Patents Would Really Like It If It Was Harder To Cancel Them
from the embarrassment-of-embarrassing-patents dept
Thu, Nov 5th 2020 12:07pm - Matthew Lane and Daniel Takash
A large group of patent holders sent a letter to Congress expressing concern that, since the US Patent and Trademark Office (USPTO) Director Iancu might soon be leaving, recent policies making it harder to challenge bad patents might be reversed. The letter concerns a process created somewhat recently, called inter partes review (IPR), that allows the USPTO to take a second look at the patents they issue based on a public request.
This is important because 43% of all issued patents challenged in court are ultimately found to be invalid, albeit at great expense due to the high costs of patent litigation. An IPR, by contrast, offers a far faster and less expensive way to challenge patents than using the courts, with the average IPR costing around $350,000 compared to litigation costs just shy of $1 million when defending against infringement claims brought by an NPE. It is no surprise that many who profit off patents do not like a process that makes it easier to find out if those patents are valid.
The letter states that "Director Iancu has clearly changed the dialogue surrounding patents, defined the patent system by the brilliance of inventors, the excitement of invention, and the incredible benefits they bring to our economy and society as a whole." While a lot of this is true, celebrating the brilliance of inventors and the benefits of patents ignores the very real direct and indirect costs of the current patent system. Patents can issue for inventions that don't actually work or exist. This was true of Theranos, a company built around patents with technology that didn't work or exist. Patents can also be used to try to win big paydays on seemingly unrelated products. This happened again with Theranos, whose patents were bought and used against a company making covid-19 tests.
Then there are also many, many, silly patents that get issued that usually don't matter because very few people want the thing the patent describes. It would be weird if these inventors got to dictate patent policy. But here we are, as a large number of the inventors signed to this letter have very silly patents (feel free to find your own favorites):
US 7,814,680 – Overshoe Unit For Indoor Use (it's a shoe that you put on your shoe)
US 5,178,576 – Apparatus And Method For Manipulating A Spring Toy (expired due to non-payment of maintenance fee)
US 9,009,870 – Garment Pocket For Rapid Extraction And Deployment Of A Concealed Weapon (does what it says it does)
APP 16/199,080 – Peeball ("a potty-training slide apparatus for boys that temporarily clips onto the toilet seat and provides an ornamental target (target has a hole through it) that boys aim and pee through and on the back side of the target is a permanently affixed ornamental slide that the urine travels down and into the toilet water.")
US 9,278,737 – Remote Control Fishing Robot (when you just don't feel like fishing yourself)
US 6,923,299 – Wallet For Retaining a Plurality of Credit Cards (for holding all the credit cards you used to pay for the other weird stuff on this list)
To quote Thomas Jefferson, "these monopolies produce more embarrasment than advantage to society."
While those with silly patents have a low chance doing any harm, even if their patent were invalid, the changes the inventors advocate for can be life or death for others. These patent policies would make it harder to challenge weak drug patents that could be holding up generic competition. Cancelling drug patents and enabling competition can save patients 79%, on average, for small molecule drugs. While biosimilar competition is nascent it is projected to save patients 15%-45% or more over the next five years, possibly more. For some, this is the difference between being able to afford a treatment and not being able to afford a treatment.
It would be a travesty if those that filed these silly patents swayed policymakers to make it harder to cancel all bad patents. Many of the inventors on this letter haven't even had their listed patents challenged in an IPR–of the 240 listed, only 18 have had any IPRs instituted–making their perspective even less relevant. This makes sense, as many of these patents describe products that are probably not economically viable due to low demand. Indeed, our casual search found several that were allowed to lapse without paying maintenance fees, a sure sign that the inventions did not produce value.
The policies being championed by the letter are already having a large effect. Procedural denials, meaning denials based on something other than the actual merits of the petition, are spiraling upward. The inventor letter makes it seem that these denials are good because they happen when a court challenge of a patent is moving faster than the IPR challenge. The letter claims that since IPR was intended to be an alternative, not an addition, it makes sense to do away with these cases. But in practice these procedural denials are being applied nonsensically and for many other reasons.
For example, sometimes drug patent challenges are so complicated that petitioners have to file multiple petitions at the same time just to get around word counts. The USPTO's Trial Practice Guide Update says this can be fine "when the patent owner has asserted a large number of claims in litigation." However, the USPTO is using the "in litigation" language as an excuse to deny all but one of the petitions when there isn't parallel litigation. So much for IPR being an alternative! These denials happened to challenges to patents on the important diabetes medication Lantus, which costs $357, and a Narcan injector that can save the lives of those overdosing on opioids, costing $126 for two doses. Narcan is only expensive because of the injector patent, the active ingredient – Naloxone – is available as a low cost generic.
The USPTO has also gotten rid of a petition because of the trial date of a completely different company. This concerned a drug used to treat schizophrenia , Invega Sustenna, that costs patients $1,853.
Another denial, concerning vaccine patents, was because the USPTO refused to allow a petitioner to step into the shoes of another company that settled. This was even though the petitioner could have not known that the other company would settle and withdraw their challenge.
Patents are legal instruments with real consequences. When patents represent true innovation, those consequences are usually positive. Patents often incentivize innovation, especially when inventions are difficult to discover but easy to copy. When patents do not represent true innovation, when they should never have been granted, they can be a drag. They can be used to hold up competition or harass other innovators. Common sense dictates there should be a quick and inexpensive system for sorting out bad patents from those that are good. However, any such system is a threat to those that make money off patents that could be cancelled. These voices should be taken with the huge grain of salt they deserve.
Filed Under: bad patents, congress, invalid patents, ipr, patents, uspto
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KUALA LUMPUR: Gavin Kyle Green has earned the last and final spot in the ISPS HANDA Melbourne World Cup of Golf later this year after being announced as one of the first 28 players by tournament officials.
KUALA LUMPUR: Malaysian veteran Danny Chia hopes to regain his drive to make up for lost time at the US$8 million ISPS HANDA World Cup of Golf when the prestigious team competition starts on Thursday.
KUALA LUMPUR: Danny Chia and Nicholas Fung will renew their successful partnership late next month after Malaysia earned a late entry into the US$8 million World Cup of Golf in Melbourne, Australia.


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Daily Kos  is a group blog and internet forum focused on liberal American politics.    Additionally, the site features a participatory political encyclopedia ("DKosopedia"), glossaries, and other content. It is sometimes considered an example of "netroots" activism.
It was founded in 2002 by Markos Moulitsas and takes the name Kos from the last syllable of his first name, his nickname while in the military.
In 2007, its parent company, Kos Media, LLC, began a fellowship program to help fund a new generation of progressive activists. About a dozen contributing editors provide content for the site, with three to four new editors being chosen from the Daily Kos community every year.
It is financially sustained by advertising, with Google AdSense and Blogads. The ads focus mostly on activist causes, media, and political candidates. The site also offers an ad-free subscription to members.
As of September 2014, Daily Kos had an average weekday traffic of hundreds of thousands of visits.
In 2008, Time magazine readers named Daily Kos the second best blog. But in 2009, Time listed Daily Kos in its "Most Overrated Blogs" section due to the loss of its mission fighting the "oppressive and war-crazed" Republican administration during Democrat Barack Obama's presidency. The website ran on the Scoop content management system until 2011 when it moved to its own custom content management system referred to as "DK 4.0". In 2016 and 2017 The Trump presidency brought out huge support for the blog, with over half a million in direct donations being received from their email campaigns.
Moulitsas and a small group of select contributors post directly to the front page; other users can post "diaries", the titles of which appear on the front page in reverse chronological order, with special attention and longer display time for those diaries highly recommended by other users. The other major source of content is the comments posted in response to front page entries and diaries. Comments for popular or controversial diaries or front-page articles can run into the thousands.
Front page entries and diaries often take the form of a news story from an outside source interspersed with commentary from the author of the diary or post. Sometimes these stories contain a request for action from other members of the community, such as to get involved with a particular campaign, give money to a candidate or contact an elected official about an issue. Some front page entries are called "open threads", which encourage people to post comments on any issue. One of the versions of these open threads is "live threads" of commentary on important events happening in real time, such as debates or elections.
Administrators may delete diaries, though this is done very rarely. "Trusted users" have the ability to recommend or hide responses posted by ordinary members whose comments they deem solely disruptive. Less than 0.01% of comments are hidden.
On November 30, 2010, an agreement to a settlement began as lawyers for the Plaintiff filed a status report indicating that both parties were in "agreement as to the contours of a proper settlement but are still in the process of determining whether the execution of the proposed terms is feasible." In May 2011, The Huffington Post reported that the lawsuit had been settled with Research 2000 pollster Del Ali making payments to Daily Kos.
Beginning in 2003, as his blog expanded to a community, Kos appointed four or five "guest bloggers" (also called "front page diarists," "contributing editors," "front-pagers," and simply "FPers") who are selected from the community and tasked with regular contributions on the front page (without needing to have their articles recommended or promoted).
2008: brownsox; Scout Finch; smintheus; Jed L.
Additionally, while on the promotional tour for Crashing the Gate, Kos turned over much of the day-to-day management to the 2006 guest bloggers. Emeritus guest bloggers have frequently retained some privileges depending on circumstances, but are not expected to post as often.
A front-page diarist known as "Armando" (Armando Lloréns-Sar)  took a prominent role during Moulitsas' book hiatus in 2005 and was well known for his foreign policy and legal analysis. He also had his own political blogging website, called "Swords Crossed" that encouraged dialog between liberals and conservatives, and was a guest political commentator in a wide variety of media outlets, including The Majority Report and Talking Points Memo Cafe. After his identity and details of his legal career were made widely known, he announced his departure from Daily Kos in June 2006, citing loss of anonymity. For two months, Armando would resurface periodically, and all of his comments were accompanied by a signature line stating that he would be returning to blogging in December 2006. Armando did indeed resurface, albeit under a user ID, "Big Tent Democrat," in September 2006. Armando "Big Tent Democrat" then left the Daily Kos site again in March 2007, citing "differences with the Management."
Another contributor posts pseudonymously as "DarkSyde" on the front page of Daily Kos and a blog called Unscrewing the Inscrutable. He is best known as a science writer with specific attention paid to biology, astronomy, and political issues such as creationism or climate change. In particular, DarkSyde's Hurricane Katrina diaries were widely read during the storm and in the immediate aftermath. They are included in a collection of science articles in the e-book Kosmos: You Are Here, co-written with science fiction novelist Mark Sumner and illustrated by paleowildlife artist Carl Buell. All the contributors to Kosmos donated the proceeds to fund the YearlyKos convention.
"Bill in Portland Maine" (Bill Harnsberger) is a front page regular, best known for his recurring Cheers & Jeers feature, in which he bestows plaudits and brickbats on various newsmakers. Cheers & Jeers, which first appeared on Daily Kos in 2003, has evolved into a mini-community within the larger Daily Kos community, in which members post announcements about weddings, engagements, births, deaths, pet news, and other personal items, as well as sharing their own particular plaudits and brickbats. He lives with his partner Michael (known as "Common Sense Mainer"), a cat named Vegas, and his beloved chocolate lab, Molly. In the fall of 2007, Harnsberger lost his job, and the Daily Kos community collected $50,000 in pledges to allow him to continue to write Cheers & Jeers as a full-time paid position.
On June 2, 2007, Steve Gilliard, one of the blog's original contributors, died at the age of 42.
In December 2015, Faith Gardner, the Social Media Director, started a rotating Featured Writer program to promote articles by top diarists responsible for the most-trafficked stories on social media. The initial four were SemDem, Dartagnan, xxdr zombiexx, and Pakalolo.
See main article: Netroots Nation. In June 2006, members of Daily Kos organized the first ever Daily Kos political blogger convention, called YearlyKos, in Las Vegas, Nevada. The event was attended by approximately 1000 bloggers and featured appearances by prominent Democrats such as Senate Minority Leader Harry Reid, California Senator Barbara Boxer, General Wesley Clark, Governors Mark Warner, Bill Richardson, Tom Vilsack and DNC Chair Howard Dean. The event was widely covered in the traditional media including Capitol Hill Blue, The Boston Globe and MSNBC. C-SPAN also carried portions of the convention.
The event was generally considered a success. YearlyKos 2007 took place in Chicago in August 2007, at which time it was announced that future conventions would be known as Netroots Nation. In 2008, the conference was held in Austin, Texas, with a surprise visit from Al Gore. The 2009 conference was held in Pittsburgh, Pennsylvania from August 13 to 16. The 2017 conference was the first time the convention was held in the Deep South in Atlanta, Georgia. Conferences are always held in venues that support a union.
Apart from its activities as a blogging, news, and general digital media platform, the Daily Kos has taken decisions placing it in the category of politically active corporations. For instance, The New York Times report that James Thompson, the April 2017 Democratic candidate for the vacant Kansas Fourth Congressional District (House) seat in Kansas, "was helped by nearly $150,000 from Daily Kos, a liberal blog, and some more modest contributions from a group aligned with Senator Bernie Sanders of Vermont". OpenSecrets.org reported that "the liberal Daily Kos endorsed Thompson and sent out a fundraising plea, which has so far garnered $178,000 in donations, according to its fundraising page."
Candidate Jon Ossoff, who ran for Georgia's 6th Congressional District in a special election in June 2017, received over $1 million raised on Daily Kos.
Farrell. Henry. Melissa Schwartzberg. 2008-12-30. Norms, Minorities, and Collective Choice Online. Ethics & International Affairs. 22. 4. Carnegie Council for Ethics in International Affairs. 2009-02-03. yes. https://web.archive.org/web/20090120200727/http://www.cceia.org/resources/journal/22_4/essays/002.html. 2009-01-20.
Web site: Dailykos.com Site Info. Alexa Internet. 2016-03-09.
Web site: Frequently asked questions. Daily Kos.
Kos, About Daily Kos, Daily Kos about page.
Tommy Christopher, "Liberal DailyKos And Conservative Redstate Join Forces To Help Ailing Conservative Blogger", Mediaite, August 1, 2013.
Jonathan Martin, "Coalition of Liberals Strikes Back at Criticism From Centrist Democrats", The New York Times, December 5, 2013.
Web site: Company Overview of Kos Media, LLC. Bloomberg. 2017-05-02.
Web site: Dailykos.com Traffic and Demographic Statistics by Quantcast. Quantcast. 2013-12-29.
News: TIME.com's First Annual Blog Index. Time. 2008-04-06. 2010-08-14.
News: 25 Best Blogs 2009. Time. 2009-02-13. 2010-04-30.
Web site: Grim. Ryan. Daily Kos Is Back. Huffington Post. Huffington Post. 4 September 2017. 13 April 2017.
Kos, Research 2000: Problems in plain sight, The Daily Kos, June 29, 2010.
Web site: Steven. Shephard. Daily Kos To Sue Former Pollster. National Journal. 29 June 2010.
Greg Sargent, It's war! Lawyer for DailyKos details lawsuit against Research 2000, in "The Plum Line", The Washington Post, June 29, 2010.
Kos Media LLC et al v. Research 2000 et al – Filing: 11 Kos Media LLC et al v. Research 2000 et al – Filing: 11 Access date: 23 April 2011.
Web site: Daily Kos vs. Research 2000 Lawsuit Settled. Mark. Blumenthal. 27 May 2011. Huff Post.
Web site: Changing of the Guard. Kos. Daily Kos. 2005-12-06. 2006-10-05.
Web site: The 2006 class of guest bloggers. Kos. 2005-12-12. 2006-10-05.
Web site: Blogging Anonymity. Armando. Daily Kos. 2006-06-07. 2006-10-04.
Web site: We'll Meet Again - UPDATED.
Web site: North By East: Blogging Liberally. 2006-11-01. Downeast Magazine. 2007-03-22. yes. https://web.archive.org/web/20061114124116/http://www.downeast.com/index.php/page/issues/id/2512. 2006-11-14.
Web site: Features DIGITAL CELEBRITY. www.portlandphoenix.com. https://web.archive.org/web/20050426202934/http://www.portlandphoenix.com/features/this_just_in/documents/04162682.asp. 2005-04-26. yes. 2017-05-26.
Web site: About Daily Kos. www.dailykos.com. en. 2017-05-26.
News: Steven Gilliard Jr., 42, Dies; Founder of Liberal Political Blog. 2007-06-06. The New York Times. 2017-05-26. 0362-4331.
Web site: Introducing Our New Featured Writers. Daily Kos.
News: How to neuter the Republicans. The Phoenix. 2006-06-21. David S.. Bernstein. 2006-07-19.
News: On second thought…. https://web.archive.org/web/20060829164351/http://www.capitolhillblue.com/content/2006/07/on_second_thought.html. 2006-08-29. Doug. Thompson. 2006-07-16. 2010-08-14.
News: Bloggers battle old-school media for political clout. The Boston Globe. Michael M.. Grynbaum. 2006-07-06. 2006-07-19.
News: Warner looks left, looks right, looks toward '08. MSNBC. Curry. Tom. 2006-06-16. 2006-07-19.
Web site: C-SPAN. 2006-07-19. yes. https://web.archive.org/web/20060619083645/http://www.c-span.org/VideoArchives.asp?CatCodePairs=Issue%2CMP&ArchiveDays=100&Page=2. 2006-06-19.
Web site: And the YearlyKos 2007 location is..... Daily Kos. 2006-10-03. 2006-10-04. YearlyKos.
April 11, 2017. Ron Estes, a Republican, Survives Tight House Race to Win Kansas Seat. April 12, 2017. Eligon, John & Martin, Jonathan.
Balcerzak, Ashley. April 10, 2017. Flurry of Spending in Kansas 4th. April 12, 2017.
Bluestein, Greg. April 5, 2017. Nearly 200K Donors Help Jon Ossoff Net Record Fundraising Haul. January 13, 2018.
This article is licensed under the GNU Free Documentation License. It uses material from the Wikipedia article "Daily Kos".