A new business article on “measuring innovation” notes that 50% of firms investing in R&D are not patenting the results of their research. The main thrust of the article is that, because so many firms are avoiding the patent system, that patents do not make sense as a broad measure of innovation. Their solution is to use the Research Quotient (Prof Knott’s measure of optimal research output based upon various financial outputs) as a better measure. See Cooper, Knott, and Yang, Measuring Innovation (March 2, 2015). Available at SSRN: http://ssrn.com/abstract=2572815 or http://dx.doi.org/10.2139/ssrn.2572815.
A better conclusion from the study – if 50% of firms that are making innovations are not patenting the discoveries perhaps our patent system is too weak? Unless you believe I guess that innovations exist that shouldn’t be patented *goes and rereads letter you wrote to congress* oh …. never mind.
Getting back to the topic of the thread, I find the model interesting, and while it makes a valid point that any economic discussion based solely on patent aspects is flawed, the model and path chosen suffers from its own sets of flaws, among which includes the notion that actual sales of actual produced goods is a key determinant of innovation.
At the same time, this type of theorizing suffers from wanting too much packed into too little.
As they say, the devil is in the details, and the paper itself suffers from “selection bias” every bit as the theory based on patents does. I will grant that the theory in looking past “just patents” is more robust, but the explicit cautions against setting policy based on results applies equally to the results of the proposed theory, just as much to the setting of policy based on a patent-determinative theory.
I would be interested in the effects of error bounds analysis based on the many intricate and subtle (and some not so subtle) assumptions running through the model.
Overall, a worthwhile read, if even for its unstated high-brow level of audience.
I’d like to see paper that tries to get a handle on copying.
Actually, your comment on “copying” reveals one of the flaws here, as the expenditures of “copying” as one form of “innovation” outside of patents would result in very high marks of the equations used.
Not so red thought of the day for peeps of the communes/commons:
Your premises are: Money is the root of all evil, monopoly is “intrinsically” bad for the “public”, and the more in the “commons” and the less property the better for “society”.
What IF the Kool-aid is coming from a billion dollar company, lobbying government (meant to serve the public) in the effort of OWNING the commons filled with what used to be property, by charging for access to it. All your “commons” are belong to us.
That’s the inherent issue with the anti-patent camp. They’re not anti-ip; trade secrets will still exist, and we’ll enter an era of corporate secrecy where patentable matter is locked down indefinitely.
People forget that patents are fundamentally granted in exchange for publication.
The author states: Fewer than 50% of the firms in COMPUSTAT who conduct R&D actually file patents for their innovations.
Where is the citation for this? I could not verify this statement! Please let me know if I missed it.
Thanks,
Naishadh
NBER has created a dataset of patents (now somewhat old) that correlates assignee information to the COMPUSTAT database. COMPUSTAT includes R&D figures. With that data it was (apparently) a straightforward process to conclude that only 50% of COMPUSTAT companies with R&D had participated in the patenting process.
I wonder if the rate of patenting has always been 50%. Has this number gone up or down over the years? I find that many firms have never been that enamored with patents.
Peter, I think it really depends on whether secrecy is effective.
Obviously it is not effective for drugs.
Actually Ned – drugs are one of things that secrecy in formulation steps can be rather effective.
anon, I am no expert here. But the argument is always made that drug patents are necessary because knock offs are so easily made, etc.
But in particular cases, I will assume you are right.
Yes – I see your point as well – room enough for both views, perhaps. Some would be easy to knock off and some would be dependent on trade-secret protectable process steps.
This is today’s atrocity. Newly litigated. I can post a few like it every single day. If anyone thinks this does anything good whatsoever for the USA, they are deluded fools.
US 8195569
Behold the innovation ! Behold the nearly 16 years of continuation practice ! Behold the healthy incentives !
^^^ the culture of random “this is bad,” started by Malcolm and joined by Mr. Snyder and Go…
How does this relate to the topic under discussion?
Should such hijacks be tolerated? Especially as they come from vested interests that have shown a lack of understanding of current patent law?
It is just ridiculous. MM is obvious paid to do this and Martin obviously is venting.
Venting with selective hearing and refusing to learn anything that goes against his Belieb system.
Martin,
I say post an independent claim if its not too long.
It should be obvious why some want to pretend these claims arent still flowing out of the office. Any discussion we have about reform, patents incentivizing innovation, etc. Has to take into account what is actually happening. Your post helps do that.
The “sniff” and go approach…
It was granted June 5, 2012.
Moreover, Go, I agree what is happening is relevant and interesting, but just blasting us with post after post of “This is bad!,” with no prior art arguments or anything else is ridiculous. And, I would say it is the “gut” test that any person familiar with patent law knows is not to be trusted. Hindsight reasoning of splattering claim after claim on this board with “This is bad” is a waste of our time and the blog space.
A post of here is a bad patent that just issued and here is why with a reasoned 103 argument would be good. But, also, some idea of the numbers that are going through the PTO to understand why some bad patents are going to issue.
By the way, that is a central issue with the PTO, Fed. Cir, SCOTUS. The SCOTUS is consistently making case law that is hard to impossible to implement at the PTO. Look at Alice. It is a massive time drain on examiners.
Worth repeating here (with a little but of different emphasis, and remembering that proper norming should be kept in mind when looking at any sense of “pure numbers”):
Re posted at the top because FAR too many people are making the mistake of assuming that “time for the examiner” is anything but an internal contrivance:
To the contrary Eoina, examination and prosecution has always been about the BEST job, and the “time allotted” aspect is an artificial one, created solely within the Office for Office managerial control.
The issue is – and will always be – just how “best” is defined. It is well known that “best” will not – and cannot – be “perfect.” It is completely illusory to even entertain such a notion. Once it is understood that best won’t be perfect, figuring out what best should be can be less-emotionally discussed.
Further, Applicants pay for a completed quality examination and really don’t care – nor should they have to – how the Office “divies up” time allotments. The Office is NOT run on a Billable Hour model, but rather is run on a flat rate model. It is entirely an Office decision to treat every application (internally, as externally there are things like extra claim fees) as a “same-size” widget. I would be perfectly happy with (and have proposed many times) a spectrum of assessment of an application based on such things as complexity or how crowded an art field is, to NOT have a “single widget size” mentality. But you cannot say things like “you get what you pay for” and tie that to time when THAT is simply NOT what was paid for.
Night,
Did you look at the claims in the patent Martin posted? They’re ineligible on their face. Shouldn’t require more than 5 minutes of analysis.
I have no idea if they’re also obvious.
Probably not “obvious” based on prior art, since very little prior art is cited. Or at least the Examiner had a hard time finding prior art.
The other day I posted one I thought was 101 eligible. My “belief” system, such as it is, seems more rational than much of the blind ideology that permeates this blog.
The reason I posted US 8195569 is because THIS VERY MORNING a number of USA companies were made less competitive and less capable of innovating because they have to very seriously deal with this kind of utter nonsense, to the tune of MAJOR dollars. Like a million bucks to get to a 103 determination on a patent that should be laughed out of court in the first 20 minutes.
This cannot go on indefinitely. It is destroying the legitimacy of the patent system, now for however many other companies and owners and employees who were drawn into the mess for merely going about their business.
That’s why I post- venting is a means toward activism. Y’all can thank IBM Kenexa for that. There will be more like me- maybe some from today’s batch.
Your “belief” system is simply not moored in the law.
“merely going about their business”
Mr. Snyder continues with his seemingly fundamental lack of understanding of patents – and his belief that somehow only active knowing copying induced infringement.
It is comments like this that prompt me to wonder whether his counsel can even have “informed consent” to act on his behalf, when he displays such deep lack of being informed as to how patent law works.
“on their face”
Priority back to ’96, more than a thousand days of PTA, five years of interactions, and my ever polite friend Go dismissed the patent (presumed valid) on its face….
Behold the “Gist/Abstract” Sword – and a complete lack of understanding of the “3, the new 4, is still not 5.”
(Since 112(f) is invoked, I wonder if Go bothered to read the spec in his “sniff” and Gist…)
Anon,
If anything, your post shows why 103 simply cant do the job of 101.
Also, i’d love for you to explain why the ‘means’ in the spec satisfy mayo step 2.
Stop trying to kick dust Go.
Whether or not I take the time to dig into the specification to explain to you what the means are or even if those means are sufficient, your post here of the extremely superficial “sniff” and Gist technique you used to presumptively declare “not eligible” is center stage as being entirely inappropriate.
Don’t try to avoid the limelight that you deserve.
Martin’s cited patent has a priority date back in 1997 (96 if the cited provisional discloses enough) and the patent issued in 2012 with over 1000 days of patent term extension, so it will expire in about 2020 — some five years from now.
While it is possible that the applicant waited too long to present allowable claims, the other interpretation that the PTO said no-no-no-no-no (channeling some of the posters here) to allowable claims for too long is also a reasonable conjecture. Someone with more disposable time than I can check out the file history.
1. An electronic bazaar operating on a distributed, electronic network, comprising:
an advertiser personal information agent (PIA), accessible to a seller by way of a networked device, configured to advertise one or more products or services for trade, the advertiser PIA also configured to send over the network one or more items of personal information regarding the seller and one or more rules governing processing of the seller’s personal information items;
a buyer PIA, accessible to a buyer by way of a networked device, configured to shop for the products or services for trade, the buyer PIA also configured to send over the network one or more items of personal information regarding the buyer and one or more rules governing processing of the buyer’s personal information items;
a product database for storing product information concerning the products or services for trade, the product database being accessible to the buyer and advertiser PIAs; and
an electronic broker computer program, residing on at least one networked server connected to the network, for providing trusted processing of one or more trade interactions between the buyer and advertiser PIAs where the trade interactions involve an exchange of personal information items between the buyer and advertiser PIAs, the electronic broker computer program including:
means for maintaining the privacy and integrity of the personal information and rules provided by the buyer and advertiser PIAs, and
means for allowing only a trusted process to securely access the personal information and rules from the buyer and advertiser PIAs to ensure that the rules are satisfied before the trade interactions for the products or services for trade are processed.
Post Alice, this claim seems unenforceable. I wouldn’t even pay the maintenance fees. Would you?
anon pray tell how would a company going about its business avoid this garbage? go out of business? who can even tell what this “innovation” may or may not encompass? Just pay a license (tax) to whomever has a piece of paper that may or (may not) on some plane have some connection to what your business does in the real world?
it’s you my friend who has no clue what a patent system is for if you can countenance this “innovation”.
Martin, if someone approached me with such a patent, I would DJ them, and move for summary judgment that the patent was invalid on its face under 101. I would then ask for attorneys fees and costs.
My guess is these four will never see a dime of fees and costs…
Texas Eastern: Filed 03-16-2015
CYVA Research Holdings, LLC v. AirBNB, Inc.
CYVA Research Holdings, LLC v. Bid4Assets, Inc.
CYVA Research Holdings, LLC v. Desert Newco, LLC
CYVA Research Holdings, LLC v. IronPlanet, Inc.
US 8,195,569 E-bazaar featuring personal information security
Nor will the existence of this patent be anything but a net drag on the nation.
And there are thousands upon thousands upon thousands just like it. And that’s why measures of patents in this timeframe and these art units mean nothing as a measure of “innovation”…
Martin, please share your wisdom with us. What is it, specifically, that you find is wrong with this patent claim. Please include citations to evidence supporting your conclusion.
Seriously? Other than the recitation of network connectivity for each of the entities, the claim is indistinguishable from:
A “bazaar,” comprising:
a seller’s agent commissioned to advertise a product or service and authorized to share one or more items of personal information regarding the seller and one or more rules for handling of the seller’s personal information ;
a buyer’s agent commissioned to shop for the product or service and authorized to share one or more items of personal information regarding the buyer and one or more rules for handling of the buyer’s personal information;
a catalog storing product information concerning the product or service, the catalog being accessible to the buyer’s and seller’s agents; and
a broker (such as a lawyer) commissioned to provide trusted processing of one or more trade interactions between the buyer’s and seller’s agents, where the trade interactions involve an exchange of personal information items between the buyer’s and seller’s agents, wherein the broker has systems for maintaining the privacy and integrity of the personal information and rules provided by the buyer’s and seller’s agents and systems for allowing trusted personnel to securely access the personal information and rules, to ensure that the rules are satisfied before the trade interactions for the products or services for trade are processed.
I’m pretty sure I used a “bazaar” like this one last time I purchased a house. For what it’s worth, I’m also pretty sure that the agents and the lawyer involved were “accessible by way of a network device.”
Other than the fact that this patent lacks any description of a new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, I can’t see a thing wrong with it….
The folks behind all this at the PTO voluntarily opened the floodgates in the mid 90’s when they struck the business method exception from the MPEP – a signal the Federal Circuit cited in State Street Bank as one of the reasons for that decision.
The folks behind the decision at the PTO to strike the exclusion of business method patents from the MPEP and the specific reference to the Hotel Security case, need to be identified that they forever live in infamy.
The PTO itself is as much responsible for the disaster that business method patents represent as any other organization. The people responsible need to be held accountable even if they have long left the patent office and moved on in their careers.
Martin –
I have reviewed claim 1 and I am baffled by your venom. What is your issue with this patent?
Patents and innovation have always been distinct. As President Lincoln said patents “add[ed] the fuel of interest to the fire of genius, in the discovery and production of new and useful things.” Innovation is genius alone.
If 50% of research firms do not patent, it may just mean that 50% of them are not good enough at research to think of something patentable. In any case, a 50% hit rate is pretty good given that getting a hit in a baseball game 30% of the time is considered stellar. It just shows that getting to first basel is harder than thinking of something to patent.
I’m afraid the stat 50% of firms don’t do something is not helpful without a reference point. Maybe 10 yrs ago 70% of R&D firms didn’t patent and patenting is now trending upwards.
Just sayin’.
I agree. What was it?
In the Age of Hacking and reverse engineering (especially for Software / wireless/ networking/AI/Automation/ )
Advising your client for trade secret strategy would NOT be wise. In this daya and age you cannot keep secret on how you implemented stuff.
Bottom line is, we have to preserve our incentive based US Patent system.
We just need a better prior art search and more through examination of the claims by the examiners.
But I don’t think the New Google Head of USPTO is there to protect our patent system.
I wonder how many IPR’s that would have been denied institution against Google , BUT will now get the call from our USPTO Director to institute the IPR and kill the patent.
“Bottom line is, we have to preserve our incentive based US Patent system.
We just need a better prior art search and more through examination of the claims by the examiners.”
I agree
>>>As for “avoiding the patent system”, it’s probably worth making a distinction between active avoidance and simple disinterest.<<<
It is a lot more complicated than that…. …I've got current and former clients who see "no reason to try to patent anything" from different perspectives…
1. Some very prolific inventors, formerly regularly filed for patents, were so totally discourated by the "no patent will issue" years of USPTO action that they have decided it isn't a fair fight, so they won't play. One of these guys told me that he could easily persuade a mule of the distinctions involved between his invention and prior art, but it was quite evident that no matter what you say, you could not longer persuade a patent examiner, no matter what arguments and evidence was put forth, at any expense. So, all his inventions are now "trade secrets" to the extent possible, and details formerly disclosed in patent application about how to make are not hidden away, except for what someone might figure out due to configuration of the product sold. Which is less than may may think…. I had one client who didn't patent a device which they sold industrially for some 25 years before competition finally copied it – and then only after they hired some engineers from the client to spill the beans. So, for many products, trade secrecy still has traction. But more fragile these days, due to the potential for digital leaks…
2. I have had other clients with good patent decide not to file anything new, given lack of injunction, and litigation expenses being absurdly high in view of the risk/reward equation being sharply titled in favor of invalidity on some basis, however flimsy. Who can blame them, when, even today, the CAFC pronounces that "one or more" necessarily requires the claim to be read as requiring "at least two". While I agree with Newman, I will have to file a declaration in all of my pending cases that "one or more" means "one" – or "more than one" and does NOT require "two". This kind of absurd jurisprudence is killing patents.
3. Other clients have taken note of the absurd gauntlet that US patentees face, post grant, compared to other countries. with all of the possibilities to kill the granted patent on a basis other than "presumed valid" from flimsy prior art before the PTAB, why bother ? Patent reform somewhere somehow has to make it ONE or the OTHER, at some point in time. Having both standards run against the patentee, when you CANNOT AMEND CLAIMS – due to PTAB intrangience or lack of authority, or both (particularly when amendment is allowed in many other jurisdictions) – is a TOTALLY ABSURD situation. It needs to be fixed. NOW.
>>about how to make are not hidden away,<<
ARE HIDDEN AWAY…
Patents have been seriously weakened. No doubt about it. My experience is about like yours where the people that are actually inventors are becoming frustrated, but my guess is the abusers of the system will find ways to still make money. That is the result of poorly thought out “reform” where the purpose is probably not to reform, but destroy.
Blindman, on the lack of reliable injunctions, on the availability of IPRs and litigation expense to crush the upstart, the patent system has become unavailable to anyone but the well-healed. Balanced against this are the requirement to disclose the invention and how to make and use it. All this does is allow others to copy with impunity.
BB Who can blame them, when, even today, the CAFC pronounces that “one or more” necessarily requires the claim to be read as requiring “at least two”.
If you’re referring to the Enzo case, that wasn’t the holding.
The rest of your comment is really sad. You need to find better clients.
The world weeps for today’s struggling patent attorney. Aspen must seem so far away …. [sniffle]
Have you thought about moving to someplace like Montana or Idaho? Rent is cheaper there.
Another comment of yours completely lacking in content. A mere insult.
link to patentlyo.com
Well, I found a reference to 6 using the N word, “that I can think of is 6’s unrepentant use of the “N” word.” And also this thread has references to MM claiming I was Martin Goetz.
Not MM with the N word yet, but I know it is there.
At least Dennis, please, make it so that the paid bloggers are held to a very high standard of discourse. MM should not be permitted to personally criticize anyone.
I disagree to a certain extent:
Make one set of rules.
Publish the one set of rules.
Enforce (evenly) the one set of rules.
That being said, to your point Night Writer, the existing set of rules is that posts are to be of a personal nature, which reads (already) that paid bloggers are forbidden.
There are two rather good if not obvious reasons for this, that become evident to those that wish to have genuine conversations on the law.
I have referenced these reasons a number of times and in a number of ways.
The long and short of it is that those with non-personal reasons of posting (which can be considered advocacy), will not engage in a conversation on the merits that leads to a conclusion that is not the desired ends. Instead, we will see spin and derailment (Malcolm is a prime example), or simply abdication of the conversation (such as Ned).
What we will NOT see are valid counterpoints discussed, accepted, and integrated into the conversation.
The end result being continuous (repeat) drive-by monologues instead of actual dialogues.
I agree. I think it is absurd on its face to think that MM is not a paid blogger. For 10 years he has spent 40 hours a week on this blog and others. He consistently has the points made by the anti-software patent advocacy groups which is a good indication that he has a policy sheet behind him.
And, you know, it is part of his job to denigrate anyone that doesn’t agree with him. It really is just an absurd situation.
OK, seems quite clear to me. But, I presume the patent office doesn’t think that Newman mean what she said:
4 ENZO BIOCHEM INC. v. APPLERA CORP.
……My colleagues hold that the clause “at least one component of a signaling moiety” requires, as a matter of linguistics, “that the signalling moiety is composed of multiple parts as the term
‘component’ in and of itself indicates a multipart system.” Maj. Op. at 11 (emphasis added). Thus the panel majority concludes that A can never “include[], in some instances, the whole signaling moiety,” contrary to the district court’s holding.
My colleagues err. The rules of grammar and linguistics, even in legal documents, do not establish that “at least one” means two or more. Also, precedent has spoken on this point and is directly contrary. See Howmedica Osteonics Corp. v. Wright Med. Tech., Inc., 540 F.3d 1337, 1344 (Fed. Cir. 2008) (stating that “at least one” means “one or more”).
This one is a mess. The majority is saying “component” means that something has to have two or more.
So, “at least one component of a signaling moiety, and wherein the signaling moiety is one or more components.” I don’t think that sounds like a contradiction, so Newman is right.
How about a link to the opinion? I wonder if the majority were Google judges.
See link to cafc.uscourts.gov
(This is the landing page for a search of the last seven days of opinions and orders)
Thx
I also thought Newman had the better legal argument. Having said that, I’m not familiar enough with signaling moiety to really analyze the claims and the case. Without delving into that, Newman seemed to have the better argument.
Newman: The rules of grammar and linguistics, even in legal documents, do not establish that “at least one” means two or more.
Completely misses the point of the majority’s argument.
“wherein A is at least one component of an X” means that X necessarily has component parts (plural). You can’t have a “component” of a unitary object. That’s the majority’s argument.
The patentee should have written “wherein A is a doohickey, or at least one compoment of a multicomponent doohickey” if it wanted to include unitary doohickeys.
The claim was interpreted correctly. At best it was indefinite — the patentee should be glad it still has a claim.
We all get their argument.
So, “at least one component of a signaling moiety, and wherein the signaling moiety is one or more components.” I don’t think that sounds like a contradiction, so Newman is right.
A separate interesting issue:
Did the majority properly give credit (vis a vis Teva) to the decision below in that – as Newman points out at page 4 of her dissent – that extrinsic expert evidence was used to show the claim could involve direct detection, which rather makes superfluous the entire “singular item as component of a greater whole” logic of the majority…?
“50% of firms investing in R&D are not patenting the results of their research.”
Might that not mean that 50% of R&D doesn’t lead to an invention?
Might that not mean that 50% of R&D is D?
Note it says 50% of *firms* investing in R&D, not 50% of R&D.
Some of the non-patenting firms may develop inventions while others may not develop any. Some may be spending money on discovering what others have already invented but are keeping secret. Some may be spending R&D on learning about what is already known.
Each patenting firm (making up the 50%) may be filing for only 2% of the “results” of R&D. The rest of the “results” could be inventions or simply unpatentable results.
The statement 50% of firms investing in R&D.. says nothing about % of R&D leads or does not lead to an invention.
Yeah. I get that. I find it unlikely that 50% of Firms with an R&D budget have declared themselves non-patenting firms… so, I took the “firms” part with a grain of salt.
Even Elon is filing for patents, he’s just granting the world a license to them (allegedly).
You say they are not patenting their innovations. I say that the Standard Model of Innovation, which says that a patent system is a critical element of innovation, is still valid, only there is a “Dark Patent Office” somewhere that is capturing these innovations, and issuing “Dark Patents” on them.