Patently-O

> In short, we are getting more or less a coin toss
> when it comes to patents being granted. And then the
> cost shifts to legal proceedings, and sadly the threat
> of these proceedings causes many innovative startups to
> settle BEFORE any trial. The trolls then cite their
> success in obtaining licensees as they go and
> intimidate more small victims in a legal racket.

I think we need a bit more evidence before we can make (or accept) the claim that granting a patent is a 'coin toss' (which for me implies that all patents are equally likely to be granted regardless of merit). My experience is that the number of "stupid" patents being issued, especially software patents, has consistently been reducing. Further the scrutiny that later software patents of which I'm familiar (two at Google, one at Blekko) were given a much more thorough going over than earlier patents I've been a part of. I attribute that to three things, one the number of examiners who are aware of modern technology is rising, two the image of the 'non practicing entity' as a leech is becoming accepted, and three politicians who supported a dysfunctional system have been made to look silly. All of those put pressure on the system to be better, as not to make people look silly or facilitate legal predation on small business.

Part of the reason this is coming to a head now is because we're at the opening of the great unravelling. The dot com boom, and the software patent equivalent of…

After doing some additional reading, I can now see what the basis for the pro-patent argument is. However, I disagree with it as I'm struggling with the concept of "because we touched it, it's now different".

Below is a description, from a patent law blog, of the change that occurs during the gene isolation :

"To be clear, the change in the molecule that the court is discussing is that the isolated DNA molecule is cleaved from the larger chromosomal DNA molecule by enzymatically cutting it off at each end and slightly altering the terminal amino acid groups." [1]

From the same link, one judge ruled this as akin to plucking a leaf from a tree. While the analogy is simplistic - how is it [conceptually] different?

Judge rulings below :

Judge Bryson [minority] :

[E]xtracting a gene is akin to snapping a leaf from a tree. Like a gene, a leaf has a natural starting and stopping point. It buds during spring from the same place that it breaks off and falls during autumn. Yet prematurely plucking the leaf would not turn it into a human-made invention. That would remain true if there were minor differences between the plucked leaf and the fallen autumn leaf, unless those differences imparted "markedly different characteristics" to the plucked leaf.

Louie & Moore [majority ruling] :

It is also important to dispute the dissent's analogy to snapping a leaf from a tree. With respect, no one could contemplate that snapping a leaf from a tree would be worthy of a patent, whereas…

> and no sensible business person would have been inclined to invest millions in an idea like IV.

Boy, you couldn't be more wrong. IV has raised $5.5 billion[0] from the likes of[1]:

* Adobe

* Amazon.com

* American Express

* Apple

* Cisco Systems

* Detelle Relay KG

* eBay, Inc.

* Google

* Microsoft

* Nokia

* Nvidia

* OC Applications Research

* SAP

* Sony Corp.

* TR Technologies

* Verizon

* Xilinx

* Yahoo

* Brown University

* Cornell University

* Grinnell College

* Mayo Clinic

* Northwestern University

* Stanford University

* University of Minnesota

* University of Pennsylvania

* University of Southern California

* University of Texas

* Allen SBH

* Bush Foundation

* Charles River Ventures

* Commonfund Capital Venture Partners

* Dore Capital

* Flag Capital

* Flora Family Foundation

* Hewlett Foundation

* Howard Hughes Medical Institute

* Legacy Ventures

* McKinsey and Co.

* Next Generation Partners

* Noregin Assets

* Reading Hospital

* Rockefeller Foundation

* Roldan Block NY

* Seqouia Holdings

* Skillman Foundation

* Sohn Partners

* Taichi Holdings

* TIFF Private Equity

* White Plaza Group

There seems to be a misunderstanding of who Intellectual Ventures are. Most people didn't know about them before the NPR stories that portrayed them as patent trolls (they are), but they are also well known as researches, as hiring a large number of great inventors and notable scientists, filing hundreds of their own patents for…

The famous "everything that can be invented has been invented" quote attributed to Charles H. Duel, a late 19th-century commissioner of the US Patent Office, is apocryphal (http://www.patentlyo.com/patent/2011/01/tracing-the-quote-everything-that-can-be-invented-has-been-invented.html) but remains a comically potent response to this sort of short-sighted bullshit.

There will always be new problems to solve. There will always be better solutions invented to existing problems. And solving problems experienced by a lot of people, and solving them well, will always be worth a lot of money.

I run a 20-person webapp design and development consultancy, with employees all over the US and no central office. Group communication is a constant problem for us: we use Campfire rooms for most project communication, but frequently have to drop into Skype for ad-hoc video calls. I wind up in Google Chat several times a day with employees and clients as well. Campfire is great for realtime-ish team conversations, but if you want to ask a question like "hey, anyone want to go in on a house for SXSW?" you're probably better off sending an email if you want everyone to see it and have a chance to respond. We keep a lot of company docs in Google Docs, stuff which would really be more useful in the company wiki we don't have setup currently. I could go on, but the gist is that our communication tools for project teams, the company, clients, and 1-on-1 conversations are pretty…

One of the comments here[0] raises an excellent point:

>I don’t understand how this strategy would work.

>The PTAB decisions about state colleges/universities are based on Eleventh Amendment immunity. On those cases, the IPR statute is trumped and cannot impede on the states’ sovereign immunity under the 11th Amendment.

>But Native American tribes do not enjoy 11th Amendment immunity; their immunity is a function of federal common law and Congress has near plenary statutory authority over the tribes. Congressional statutes can abrogate or supersede tribal immunity, without constitutional issues.

>Tribal immunity is more about immunity from the states over Native American tribes, based on federal supremacy over Native American affairs.

>But AIA is federal. So the argument is simple; by enacting the AIA and subjecting issued patents to AIA reviews, and not making any exception for patents owned by Native American tribes, it abrogated any sovereign immunity that may have applied.

>The patents obviously weren’t invented or originally prosecuted by the tribe; given the fact that the immunity is federal common law and policy-based (and not 11th Amendment-based), I can see that policy-based arguments about how manipulative this is, will be very receptive.

[0]https://patentlyo.com/patent/2017/09/allergan-creating-sovereign.html

The TL;DR is that the patent system is horribly broken and this is a shell company from East Texas trying to take the VC money of a hot new startup (among others).

The more interesting question is whether or not they'll get stuck in EDT or not. People have found several tricks to escape that particular jurisdiction only to have the trolls invent new counters. It sounds like they've filed a Declaratory Judgement action here, but it's hard to tell. But DJAs can be quite complicated[1]. So you can practically have your case dismissed as not yet "ripe" only to have them turn around and sue you in a jurisdiction where they can get money out of you fast (usually East Texas).

What I'd like to know from grellas is whether this particular DJA appears likely to succeed? Because I wouldn't be surprised any more to see it fail due to some oddball procedural trick, only to have them file suit in their home court the very next day. I even remember one time where a patent troll even abused a quirky local court rule in East Texas to file a day early and gain priority. In fact, I think that was complications arising out of that case that led to the shuttering of the excellent Patent Troll Tracker blog.

[1] See, e.g. http://www.patentlyo.com/patent/2012/03/3m-v-avery-walking-the-line-of-declaratory-judgment-jurisdiction.html