Patent applicants must submit known prior art to the USPTO to assist in examination. The average number of references has grown tremendously, but not the median. The growth is driven by a small subset of applicants submitting a large number of documents. pic.twitter.com/nXQlUvU1LN
— Dennis Crouch (@patentlyo) January 27, 2022
It would be interesting if you could cross reference the applications with a large number of references against patents with family members involved in litigation. Oftentimes, a ton of prior art gets dumped into IDS of continuation applications of patents involved in litigation, as patent owners err on the side of caution and disclose every piece of prior art produced by the defendant, and often every pleading and brief generated in the litigation.
Re: …”a ton of prior art gets dumped into IDS’s of continuation applications of patents involved in litigation..”
Indeed, but this must be in far less than 100 such cases a year, as it is part of a good patent litigation tactic of keeping a “continuation” pending of an application for a patent planned to be sued-on [without abandoning that parent patent application]. Not just to dump into the continuation citations to any and all prior art found by defendants in the litigation. Also to be able to obtain amended claims in the continuation that would avoid that art yet also meet non-infringement arguments, and then sue on the continuation. However, that tactic is, of course, not available for already-issued patents with no pending continuation or divisional, most patent suits are on such long-issued patents, it may risk obviousness-type double patenting, and it is now far less effective for suit defendants who use their new found prior art in IPRs.
Is this something that can be objectively verified?
“that tactic is, of course, not available for already-issued patents with no pending continuation or divisional, most patent suits are on such…”
Yes, as I had noted awhile back here, for the AIPLA discussions of the pending AIA proposed legislation I had done a count of the ages of patents in new patent suits being filed and found that most were patents that had been issued for a number of years before.* [Some even expired but still capable of suits for some limited period of back damages.]
*[This is one of the two main reasons why IPRs have been used vastly more often than the AIA’s alternative PGR system, which is only for patents for only a few months after they issue.]
Speaking of the litigation value of older patents, reportedly Blackberry just sold a bunch to a PAE for $600 million.
I seem to remember that “awhile back” aspect – and was wondering if since the decade since AIA whether or not any new objective reporting had been done.
Reporting by you tends NOT to be all that objective.
And thanks for the Blackberry IP sale news – I do wonder though if that sale is related to the hardware side, seeing as Blackberry transitioned away from hardware.
A quick search brought up this: link to marketrealist.com
I am not familiar with the source, so cannot vouch for its veracity (or spin level).
Interesting that the increase in average [and total?] applicant cited art is due to huge reference dumps by a small percentage of applicants. Is there a particularly large number of the latter in a particular art?
Thank the Federal Circuit. There are a number of Federal Circuit decisions that essentially require applicants to submit anything and everything.
Most issued patents won’t face litigation and so most applicants aren’t really concerned about the Federal Circuit. However, for those applications in which litigation is anticipated, there will/should be LOTS of prior art cited.
+1
Yep – yet another example of the trap for the unwary, patent profanity induced by the anti-patent courts.
Speaking of anti-patent courts, with anti-patent Justice Breyer hitting the exit door, does anyone have any insights into the patent leanings of the list of replacements?
does anyone have any insights into the patent leanings of the list of replacements?
As far as I know, none of the candidates in the short list have any patent leanings whatsoever. As you know, one’s political ideology doesn’t necessarily take one down one path or another.
One would think if you like the little guy over the big corporation, you would be for strong patent rights. However, big-tech has turned this narrative around 180 degrees. As such, while liberals are generally for the little guy and against big corporations — that general notion goes out the door when it comes to patent law.
Re: “As you know, one’s political ideology doesn’t necessarily take one down one path or another.” [On patent law decisions at the Sup. Ct.]
True [and also true of many other legal areas], but there are several commentators here who are still in denial of that repeatedly demonstrated reality.
Key word Paul being “necessarily.”
That being said, show me one Liberal justice that is even close to being pro-patent.
Breyer (exiting)? Sotomayor? Kagan?
Seriously…
For more objective arguments either way one could ID the Justices who authored the most objected-to-on-this-blog Sup. Ct. decisions in recent years: eBay, Bilski, Alice, Mayo, KSR, and the failed attacks on IPR constitutionality.
More obfuscating B$ from you Paul.
Sure.
Some of the conservative judges have been less than supportive (I am looking at you, Thomas), but to pretend that the Lib Justices have not been far worse is just not credible.
That being said, show me one Liberal justice that is even close to being pro-patent.
Show me one Conservative justice that is even close to be pro-patent.
eBay (injunction) was 8-0.
KSR (103) was 9-0.
Bilski (101) was 9-0.
Mayo (101) was 9-0.
Alice (101) was 9-0.
Nautilus (112) was 9-0.
Heartland (venue) was 8-0.
Limelight (inducement) was 9-0.
I agree with the basic thrust here. I would also note that the rare instances of the Court favoring patents tend also to be bipartisan. Bowman v Monsanto, for example, was a unanimous victory for the patentee. Similarly, when Justice Alito dissented from the Cuozzo holding that the PTO could institute on challenges that the IPR petition never raised, the lone justice who joined his dissent was Sotomayor.
Fair enough point there Wt — but this does not lessen my point — you will need to do more than look at the final “counts,” and read what the Justices are saying.
The Lib judges are much worse.
The Lib judges are much worse.
Do you want to die by the guillotine or by being drawn and quartered? I suspect that most would have a preference as to the process but the end result is the same — and it is the end result that matters most.
I again disagree — it matters very much whether I need to move someone an inch (to not die at all), or if that someone is poisoning the mind of the one that I need to move merely an inch.
It would be a huge mistake to “one bucket” the Justices.
On the SCOTUS, it is hard to identify a partisan lean on patent decisions. Both D-appointees and R-appointees are equally hard on patents, and when they decide to cut a break, that is also usually bipartisan.
On the CAFC, however, there is a more partisan break down. Sure, there are D-appointees like O’Malley who are not as relentlessly hard on patentees, and R-appointees like Mayer who are hard on patentees. In the main, however, most of the R-appointees are less hard on patentees. In the main, most of the CAFC judges most likely to give the patentee a hard time are D-appointees.
[I]f you like the little guy over the big corporation, you would be for strong patent rights.
When MPHJ was suing a bunch of small businesses with photocopiers, who was the “little guy” in those cases? Who was the party arguing for “strong” patent rights?
This is not an either-or, zero-sum game.
As everyone knows, there have always been legal tools in District Court tool boxes to put a stop to MPHJ-like shenanigans.
They have only to use them.
America continues to sacrifice protected innovation at the alter of the meritless.
Sure. I was merely responding to the idea that “if you like the little guy over the big corporation, you would be for strong patent rights.” This is self serving nonsense that we tell ourselves around these parts, but reality is more complicated.
Sometimes “strong” patent rights favor “the little guy,” and sometimes “strong” patent rights are used against “the little guy.” Richard Feynman once said that “[t]he first principle is that you must not fool yourself, and you are the easiest person to fool.” We all need to be on our guard to keep from deluding ourselves that “this suits my interests” necessarily equals “this suits society’s interests.” Sometimes that is true, but sometimes not, and it is endlessly tempting to confuse those two categories.
It is widely reputed that patent suit juries tend to be sympathetic to small inventors, but how many patent suits these days are on patents that are owned by small inventors? [This should be relatively easy to check by checking a list of patent suit titles for names of individuals?]
Sure. I was merely responding to the idea that “if you like the little guy over the big corporation, you would be for strong patent rights.” This is self serving nonsense that we tell ourselves around these parts, but reality is more complicated.
It is reality that you continue to ignore. Patent rights level the playing field. Lack of patent rights allow the strong to stay strong and use their other competitive advantages.
Any legal process is subject to being abused. However, this does not negate that certain legal processes, as a whole, are more favorable to the small guys.
Sometimes “strong” patent rights favor “the little guy,” and sometimes “strong” patent rights are used against “the little guy.”
I like the way you reworded things to avoid answering the important question — this question being: ‘when has weak patent rights favored the little guy?’
Patent rights are a competitive advantage to those that have them. Naturally, both big and small companies can enjoy that advantage. However, the difference between big and small companies is that big companies have many more competitive advantages that they enjoy beyond patent rights. Because of larger sources of capital, they can spend more on engineering and marketing (or whatever else money can buy). They also have more clout on both sides of the supply chain (e.g., their own suppliers as well as their own downstream retailers). They have economies of scale. They have a preexisting market presence with end consumers that small companies only dream about. They have greater ability to influence government.
It seems to me that you would sacrifice one of the only competitive advantages (i.e., patents rights) that a small company can employ because big companies can employ that advantage as well. That is poor logic in my book.
[W]hen has weak patent rights favored the little guy?
In the MPHJ litigations. The fact that you missed this point when it was presented literally not more than 3 posts up the chain is a living illustration of how our self interest creates blind spots in our thinking on this subject.
In the MPHJ litigations.
BTW — MPHJ is a little guy. Moreover, it wasn’t “weak” patent rights that reigned in MPHJ, it was the FTC.
Pointing to MPHJ is little more than an argument to throw out the baby with the bathwater.
All patents rights are capable of being abused. If we are going by your logic, we should therefore weaken them. Right?
If we are going by your logic, we should therefore weaken them. Right?
You are reading an argument into my 1.2.1.2.1.1 that I did not write because I did not mean to convey any such argument. I have thoughts about policy calibrations, but I did not express any such thoughts in 1.2.1.2.1.1. I really am merely observing that sometimes “strong” patent rights (whatever “strong” means) benefit “the little guy,” and sometimes they do the opposite.
Greg,
Your “mere response” is off and you have exactly zero room to criticize anyone.
“ missed this point when it was presented literally not more than 3 posts up ”
Exactly like Greg turned his blind eye to the counter…
Keep on cratering there Greg.
I really am merely observing that sometimes “strong” patent rights (whatever “strong” means) benefit “the little guy,” and sometimes they do the opposite
That is like saying sometimes people die from COVID after being vaccinated and some people don’t die after being vaccinated. That statement leaves out a LOT of useful context.
That statement leaves out a LOT of useful context.
It is not my job to make your point for you. If you think that additional context is useful here, no one is stopping you from adding it.
It is only Greg’s job to p00-p00 what you say, Wt.
Context missing from what he says is not important to him, because — after all — “he uses his real name, dammit Gumby.”
If you think that additional context is useful here, no one is stopping you from adding it.
If you want your points to be persuasive, perhaps you should endeavor to address the context surrounding your points.
Agreed. For the general welfare, and the prosperity of society, and the promotion of progress in the useful arts, one would think that the courts should make it their business to clear the way for good patents to be swiftly and effectively enforced even while bad patents are swiftly revoked. I’m looking at you, Supreme Court.
The problem is not insoluble, if ever-greater complexity in the obviousness issue is not allowed to stymie the objective.
It is clearly NOT the obviousness issue front and center as being the biggest culprit.
Re: “It is clearly NOT the obviousness issue front and center as being the biggest culprit” … “to clear the way for good patents to be swiftly and effectively enforced while bad patents are swiftly revoked.”
Testing that hypothesis would require considering the very many Alice-101, 112, and other patent suit defenses to claims that would not have been allowed to begin with or ever sued on with a better 103 search and examination, as noted many times on this blog. Also, it would be ignoring the literally thousands of claims never litigated in the last ten years because they WERE quite swiftly revoked in IPRs which DID find better 103, or 102, prior art. Very few patents sued on in the U.S. now ever get any obviousness test at all otherwise, since only small percentage of patent suits now ever go to trial, and pre-trial judicial obviousness decisions are very rare.
Yeah, I am going to call B$ on your post there Paul.
It takes nothing more than seeing what the Supreme Court has been doing.
one would think that the courts should make it their business to clear the way for good patents to be swiftly and effectively enforced even while bad patents are swiftly revoked. I’m looking at you, Supreme Court
Do you know how to achieve that? The answer is: bright lines
If you are one side of the line, then the patent is invalid. If you are on the other side of the line, then the patent is valid. The reason we have so much patent litigation is that the Supreme Court eschews bright lines for flexible tests. Flexible tests are what drives up transactions costs (litigation being one) associated with intellectual property rights. With a flexible test, both sides can rightly believe that they are in the right despite taking opposite positions. Litigation arises when both sides believe that they have a reasonable shot of prevailing.
I’m going to analogize this to a decision the governor of my state made (about a year ago) with regard to eligibility as to receive a COVID vaccine. At the time, when availability was limited, many states limited receipt to just those of a certain age (e.g., 65+) or having certain health issues. However, the “having certain health issues” (i.e., an example of a flexible test) was poorly defined and subject to a lots of gamesmanship. In contrast, despite lots of criticism at the time, my governor simply said that if you were some particular age, you would receive the shot and other age ranges would open up at certain set dates. This is an example of a bright line test. As a result, everybody knew when they were eligible. Moreover, it totally eliminated people going to their doctors — trying to get designated as having certain health conditions in order to get the shot earlier (i.e., transactions costs). It also eliminated the need to enforce the restrictions (i.e., what doctor’s note is going to be good enough?) It wasn’t a perfect system, but it completely eliminated the gamesmanship and transactions costs
Today, the only way one knows whether their patent is valid under 35 USC 101 is to go to the Federal Circuit. That is an extremely costly transaction cost in order to determine whether a patent is valid. 15 years ago, if your patent made it out of the USPTO, there would be very little concern about validity under 35 USC 101.
If you are one side of the line, then the patent is invalid. If you are on the other side of the line, then the patent is valid. The reason we have so much patent litigation is that the Supreme Court eschews bright lines for flexible tests.
+1
But what if the Supreme Court goes and draws the “bright line” in the wrong place? Can the Justices be relied upon to draw the line in the right place? I’m sceptical. Do the Justices even trust themselves, to draw the bright line in the right place? I suspect they don’t, and that’s why they fall back on all their “flexible” tests, in effect delegating to the Federal Circuit a nose of soft legal wax to be shaped by the specialist experts.
Isn’t it sound judgement by the Justices, pragmatically to grasp their inadequacy, and refrain from shouldering a responsibility for which they are not equipped?
How to improve the situation? Import experts (Cunningham?) onto the Federal Circuit, perhaps, and have them educate the other judges on the panel?
Is there any alternative? Parachuting apatent law expert into the Supreme Court seems to me to be a complete no-hoper.
Two brief responses:
1) It is frequently more important to have a bright line than the policy-optimal bright line.
2) The CAFC had created a very workable body of bright line jurisprudence in the 1980s & 90s, and then SCOTUS (who seriously lack the expertise to know whether those lines were well drawn or not) came along and rubbed it all out. If they are presently having a hard time finding the right lines, that is very much a problem of their own making.
But what if the Supreme Court goes and draws the “bright line” in the wrong place?
Then Congress fixes it — if they want to. However, we ALL still know where that line is.
Do the Justices even trust themselves, to draw the bright line in the right place?
Seriously, it is the line that matters — not where it is drawn.
How to improve the situation? Import experts (Cunningham?) onto the Federal Circuit, perhaps, and have them educate the other judges on the panel?
You know nothing.
Parachuting apatent law expert into the Supreme Court
Wouldn’t matter.
To Greg’s note, he may have stumbled upon a key word:
policy
Common Law law writing that is aimed at policy is de facto NOT aimed at “interpretation.”
Bright lines? Great, but what Supreme Court composed of judges (however sharp) who are not patent specialists has the competence to do this? Specialist patent judges are unremarkable at the UK Supreme Court, and it has proven competent to draw bright lines in the jurisprudence of patent infringement and validity.
Whereas a Supreme Court lacking any patent experts will tend to delegate the task of drawing all those bright lines down to the courts below, right?
I wish that SCOTUS were to delegate the drawing of bright lines to the courts below. That is how it worked through the 1980s and’90s, but then in the 2000s and 2010s the SCOTUS set about effacing all those bright lines and replacing them with fuzzy standards.
The not-so-subtle evidence of being directly obtuse:
“and that’s why they fall back on all their “flexible” tests, in effect delegating to the Federal Circuit a nose of soft legal wax to be shaped by the specialist experts.”
IF what you suggest were even remotely true, the level of certs taken by the Supreme Court to affirm the CAFC would be equal to the number taken to fire-hose-the-simians-in-the-cage.
It is downright rude of you to be so inte11ectually DIShonest in regards to discussions of US Sovereign law
An additional thought to:
“ Today, the only way one knows whether their patent is valid under 35 USC 101 is to go to the Federal Circuit. ”
And the “connection” to bright lines (or lack thereof).
For 101, the problem (generated BY the Supremes and amplified below) is beyond the “bright line” issue in that we have a Gordian Knot of conflicting lines.
It just is not as simple as some would have it that the Supreme Court is letting a lower court ‘fill in the blanks’ or ‘determine exactly where to draw the [policy] line.’
The lines already drawn are drawn in contradictions.
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