New Patent Reform Law Already A Good Thing... For Patent Attorneys
from the but-of-course dept
While it seems pretty clear that the patent reform bill that became law a few weeks ago won't actually do much to improve our broken patent system, one area of business it's helping tremendously is in increasing demand for patent lawyers. Due to the new law, suddenly law firms are scrambling for more and more patent lawyers:Patent lawyers are in such demand that their specialty may account for more than 15 percent of law firm job openings while representing just 3 percent of lawyers in the United States.The NY Times article above goes on to point out that the new law has especially made things much more complicated, thereby increasing demand for patent lawyers. It also mentions how law firms are really seeking people who could have been contributing to actual innovation, but have left engineering for the law instead:
Such lawyers typically have degrees in fields like engineering as well as law. Some law firms are now almost doubling recruitment fees to meet the growing demand for specialists in intellectual property, or I.P., particularly in technology, said T. J. Duane, a principal at a legal recruitment firm, Lateral Link.
The ideal candidate would hold a doctoral degree in electrical engineering, have graduated from a top 10 law school and have worked for four years at a strong law firm, Mr. Duane said.This is not a good thing. A functioning patent system is one where the rules are clear and fewer lawyers are needed. The fact that the clearest immediate impact of the change in the law is the opposite should give the politicians who supported this law a pretty big reason to rethink it.
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Filed Under: lawyers, patent lawyers, patent reform, patents
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Dagnabbit!
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Re: Dagnabbit!
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As the saying goes...
If you can't innovate, litigate.
Clearly these people weren't interested in the innovation side of things.
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Careful, this could potentially give a politician a stroke.
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We spent two two-hour class periods in my patent law class going over several of the changes in the new patent law. And we were just scratching the surface. I'll bet dollars to donuts that you don't understand these changes that you are so sure "won't actually do much to improve our broken patent system." You don't have a clue what you're talking about.
This is not a good thing. A functioning patent system is one where the rules are clear and fewer lawyers are needed. The fact that the clearest immediate impact of the change in the law is the opposite should give the politicians who supported this law a pretty big reason to rethink it.
Again, you really don't have a clue. Patent law isn't non-functioning because it's complicated. It's complicated because the subject matter is inherently complicated. Seeing as you seem to think in extremes and you abhor nuances, it's no wonder you don't like patent law. A complicated body of law received a bunch of substantive and procedural changes. Of course lawyers who grasp the changes are in need. Grow up.
You'll whine about anything, Mike. It's just stupid around here lately.
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Re: The T-Word
Also, something being "complicated" is nothing more than an expression of the observers inability to understand the entirety of what they're perceiving. There really is no such thing as complicated, all things are simple.
Luke: "I don't believe it!"
Yoda: "That, is why you fail."
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I prefer the mens rea-style systems, myself, where you actually know if what you're doing is breaking the law. Or, in this case, you actually know that you're copying a patented invention, as you only know the process because the amazingly non-obvious solution is listed out in easy-to-follow steps in a patent.
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And that is good legislation? If it takes a class of lawyers 2 hours to just scratch the surface of patent law, what hope is there for the non-lawyered inventor? I thought we were supposed to have patent laws that promote progress and useful arts not patent laws that promote law degrees and litigation.
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Coincidence?
Mike, I'm pretty sure you wrote the last sentence and then wrote the rest of the article back upwards to support it. The reforms are fundamentally good and bring the US in line with the rest of the world. ie the rest of the world too sensible to allow software or business patents.
"It also mentions how law firms are really seeking people who could have been contributing to actual innovation, but have left engineering for the law instead"
That doesn't even make sense. If they've already left then they have already left.
Phillip.
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At least you admit that patent law is non-functional.
"It's complicated because the subject matter is inherently complicated."
Pray tell, how is the subject matter inherently, and not artificially, complicated? Why? What makes the subject matter so inherently complicated?
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Why do you assume that if the law is complicated, it is detrimental to "the progress"? Substantive patent law isn't that complicated. For example, the written description/enablement/best mode requirement in Section 112, paragraph 1, seems simple on its surface. Applying that paragraph to real world situations is a different story. I spent all morning reading cases from the CAFC interpreting this requirement over the past 40 years. Is that a problem with the law? No. Don't confuse the cause with the symptom.
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Hands down the most interesting guy you'll ever meet, guarenteed.
/s x 100
(coming from a EE)
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The patent laws just changed in dramatic ways; of course there is going to be a short-term increase in demand for new patent lawyers to help clients and corporations transition, as well as years of new litigation to determine how the new statute plays out in practice.
Now, if we have a dramatic increase in patent lawyers as a percentage of the practicing bar over the next twenty years, blame the new scheme, but this is about two decades to early to judge.
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My point is that I doubt very, very much that Mike has any idea what he's talking about. Look at the Act: http://www.gpo.gov/fdsys/pkg/BILLS-112hr1249enr/pdf/BILLS-112hr1249enr.pdf
How much of that do you think Mike really digested before he decided it wouldn't do anything to improve patent law? None or close to none. Mike has no idea what the fuck he's talking about here.
Of course, it's about spreading FUD on Techdirt, so it's doubtful that anyone is surprised by this. Mike would whine about how terrible the law is no matter what the text actually says.
His IP bashing has been really desperate today.
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I'm not referring to the subjects of patents themselves, I'm referring to patent law itself.
Notice how you still haven't answered my question.
and often times that technical jargon is explaining something very simple using obscure language with the intent of hopefully fooling the patent examiner into thinking that it's novel. That's often a problem with patents. People trained in an art may see something as obvious whereas a patent examiner may not know the difference. Something may have had plenty of prior art and may simply be a small modification or manipulation of current knowledge, something that others have used before when the need arises, it's just not all that well known to people who don't run into the problem. But given a specific problem, the patent could be on a solution that several people would easily independently come up with.
It's like if someone got a patent on a way to make software solve certain math equations. It's not that the patent is innovative, it's that some math equations don't always need to be solved. But when the need arises, several mathematicians will likely come up with similar solutions without patents.
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[emphasis added]
I think the point that you maybe missing is that why should such a short term increase be warranted? Why should the (new) laws and the legal system be so obscure that people need to spend so many resources testing them to know the outcome?
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Notice how you still haven't answered my question.
Sounds to me like you could answer your question as well as I could--if not better. I'm struggling to learn substantive patent law myself at the moment. I'm sure the things I'm struggling with seem simple to someone who's been doing this for a long time. Sorry if I'm not giving the answer you want. I'd be interested in your opinion on the matter if you want to share.
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I think the answer is that we're better off without patents than with them. Your assumption is that just because we have a complicated patent system then we somehow need one. That we somehow even need a patent system to begin with.
Just because complicated subject matters exist, in mathematics and science, is no justification to have a patent system. Just because patents can conceivably cover certain ideas and fields of study doesn't mean that they should. The fact that a patent can conceivably cover a complicated field of study is different than saying that patent law itself should be complicated, or that patents should even exist.
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The patent system is inherently difficult to legislate because it is intended to draw lines of what will or will not be patentable in the future, before those inventions could possibly be conceived. This isn't a murder statute in which we could clearly define what qualifies as an unlawful taking of life. How could a patent act originally enacted in the time of record players possibly be sufficient to draw the lines between mp3 players, without litigation to determine the scope of ideas of "novelty"?
The law always requires interpretation. Patent law is just more intricate because the subject matter necessarily has not been created at the time the legislation was written.
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IOW, I think the answer to the question is ... abolish patents. I don't think patents really solve anything beyond allowing the formation of government established monopolies and cartels that do nothing to promote the progress. Sure, they help out lawyers and monopolists, but by and large there is very little to no evidence suggesting that they actually promote the progress. Patent law doesn't need to be so complicated because patents don't need to exist. We're better off without them.
The fact that people have to spend a lot of resources worrying about not infringing on someones patent before doing anything suggests a broken patent system. Patents should only be on ideas that others are very unlikely to independently invent. If others are likely to independently invent similar ideas (without patents) then those ideas are not patent worthy. When people and businesses have to constantly do extensive and expensive patent searches before doing anything, that's a bad sign. When a lot of lawyers are getting hired to either sue others or defend against patent lawsuits, that's a bad sign. It suggests that people are getting sued for frivolous, non-patent worthy ideas that are likely independently invented. This is especially true since IP infringement damages are absurdly and unacceptably high, especially if the infringement was intentional. The idea that people must put a lot of resources into avoiding infringement is nonsensical. Those resources are better spent actually innovating.
If we are to have a patent system, we need to make some simple changes to the patent system. Most patents never make it to product. Every patent that never makes it to product is a bad patent. One simple change should be, if you don't use it, you lose it. If you're a patent troll and you don't actually do anything, then those patents should be promptly invalidated for anyone to freely 'infringe' upon. Contrary to popular lawyer opinion, acquiring patents just to sue others does no one any favors.
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Economic Damage
Chinese manufacturers just get on with innovating and driving the price down. Oh sure, it is not the kind of innovation that patent lawyers approve of. There are lots of small changes and copying from others. But they are selling product. They are employing their people. They are paying taxes to their government.
If the patent system makes American goods less innovative and more expensive than Chinese goods, then is that going to influence sales? Walk into your local TV store and try to find a television which is made in USA. Go looking for the US television industry. It used to be big, but now it is gone.
The US manufacturing sector is still pretty big. USA makes aircraft and electrical machinery. Those industries are moving out too. The employment losses are only just starting.
Heard of the "rust belt" in USA? There seems to be rather a lot of it. Using Google Maps, go for a wander around Detroit, MI. You will be stunned at the amount of vacant land and derelict buildings there are, close to the city center.
Handing over your manufacturing sector to other countries is doing tremendous damage to the economy of the USA. Planet earth is finite. Human beings are going to find a way to live sustainably, or rather a lot of us are going to die in the ecological catastrophe. Who is going to supply the goods for the new sustainable way of living?
The patent system does not deliver the benefits that the lawyers advertise, plus its cost is vast. Economists have been saying this for years. Stop getting snowed by the patent bar. They talk a great game, but they deliver disaster. Americans, this is your wake up call.
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But why should patents conceivably attempt to cover every question, outcome, or nuance of real life? Why should patents conceivably cover such tiny incremental advancements or modifications? Why can't we have a legal system that doesn't assume the possibility, but instead one that assumes that most things aren't covered to ward off so much legislative effort? I think part of the problem is that people and law firms have grown accustomed to the fact that our legal system is tolerant of frivolous lawsuits that attempt to cover every question, outcome, or nuance of real life. I think part of the problem is that these law firms have grown way too accustomed to having a government that is willing to allow them to misuse the legal and patent system to micromanage everyone's minor question, outcome, or nuance of real life. Such is not a free market society, but a government-industrial controlled one. One way to correct this is to make the legal system less tolerant of such frivolous attempts. Lower infringement damages to something reasonable and fewer people will attempt to use the patent system as a lottery every time someone breaths or makes some other 'nuanced' move. and substantially increase the damages for such frivolous attempts and, again, all these law firms wouldn't keep attempting to misuse our legal system to micromanage everyone's lives and businesses to their sole and personal advantage.
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and I think you did a good job of hitting the nail on the head. The law shouldn't attempt to cover every possible "question, outcome, or nuance of real life." That's absolutely ridiculous. But what the law should do is it should sufficiently deter those who attempt to misuse it to control "every question, outcome, or nuance" in the real life of others. It can do so through higher frivolous lawsuit penalties and by not imposing absurd potential damages against defendants for no good reason. Otherwise, everyone is encouraged to be a plaintiff and to think up elaborate schemes to extort money from others. Heck, look at negligence schemes alone. Laws need to be in place to avoid frivolous negligence attempts. Otherwise, people will abuse the system. They'll purposely slip in a store just to blame the store and sue them, especially if they can potentially get awards that are disproportionally higher than actual damages and if the penalties for frivolous lawsuit attempts are very small to almost non-existent.
The law can resist frivolous lawsuit attempts by being more specific about what the law explicitly does not cover. and it could do so by simply not covering so much. It can do so by not imposing ridiculous penalties against defendants for no good reason. It can do so by imposing higher sanctions against plaintiffs who file ridiculous lawsuits. and it can do so by simply granting far fewer patents and raising the patent worthy bar.
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This is part of my criticism of the patent system. The fact is that there is plenty of evidence suggesting that patents only hinder innovation and there is little to no evidence suggesting that the spur innovation.
http://www.dklevine.com/general/intellectual/against.htm
Patents are a government established monopoly. Government established monopolies are known to cause economic harm. They cost jobs, reduce aggregate output, and increase prices. They harm consumers.
No one is entitled to a government established monopoly. If these things are to exist, they should only exist to the extent that they are socially beneficial. If someone wants special monopoly privileges, the burden is on them to justify those privileges. But, like you suggest, it is very difficult to measure any progress that patents allegedly promote. It's difficult to distinguish between a patent worthy idea and a non-patent worthy idea. If the patent system can not reasonably distinguish between a patent worthy idea and a non-patent worthy idea (and by reasonably, I also mean without spending a ton of resources doing so, because such a waste of resources is socially harmful and diverts resources away from innovation as well) then I say we abolish patents. Not every idea is patent worthy. For our patent system to simply assume that every idea is patent worthy is nonsense. Plenty of innovation has occurred, and will continue to occur just fine, without patents. We are better off without patents than with a system that can only poorly differentiate a patent worthy idea from a non-patent worthy idea. and we are certainly better off without patents than with a system that simply assumes that most (or all) (new) ideas are patent worthy.
The fact that these lines are so difficult to draw, and require so many resources in doing so, is in fact a criticism against having patents. Remember, if someone wants a government established monopoly (a patent), the burden is on them to justify it. and if we can't reasonably and reasonably efficiently draw these lines and determine or measure the extent of social benefit or harm that patents are causing, then their burden of justifying the patent system has not been met. Such a lack of meeting that burden is grounds to abolish patents.
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I am not saying that a statute should define every nuance, but that we often need some understanding of the nuances to practice every day. We need litigation to define the scope of patentability under the existing scheme in order to counsel meritorious inventors. If I have a client walk into my office with a device that resembles an mp3 player but has a cool new feature, I couldn't issue a patentability opinion if all I knew was that a patent must be "novel." I need the decades of case law that defines that word, and I need to apply that law to the prior art.
What I am getting at is there will be holes in this statute, like any other, that will drastically affect legitimate business (ie not patent trolls) with the uncertainty that words bring. We need lawyers and lawsuits to figure out what those words mean, so a short-term uptick in the demand for patent lawyers should not be a surprise.
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I have other issues, such as "first to file" doctrine, rather than "First to prototype" doctrine being used,. but I'll need to read it fully before committing to stupidity...again. :)
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Heh. Why must you always make such bad assumptions?
In the last couple months I've been involved in three separate full day events that actually involved looks at AIA and what it would mean. These events are popular in Silicon Valley law firms these days, and apparently -- contrary to your suggestions -- various patent attorneys have thought my views might be helpful. Hence the invites. I've had detailed conversations with patent lawyers all over Silicon Valley. I've read the act itself many times.
The changes will have little to no impact on the problems of the system, because none of them address the actual problems of the system.
Again, you really don't have a clue. Patent law isn't non-functioning because it's complicated. It's complicated because the subject matter is inherently complicated.
You should read Bessen & Meurer. No offense, but I trust them over some kid in law school.
Seeing as you seem to think in extremes and you abhor nuances, it's no wonder you don't like patent law. A complicated body of law received a bunch of substantive and procedural changes. Of course lawyers who grasp the changes are in need. Grow up.
Again, a functioning change is one that decreases the need for lawyers, not increases it. One that increases the need for lawyers is a broken system, as it is increasing expense without increasing innovation. This is not an opinion, that is a fact.
For those who prefer substance to our obnoxious law student's snotty attitude, you can check out Mark Lemley's analysis of the changes wrought by AIA here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1929044
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Re: As the saying goes...
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Unfortunately, most law schools actively work to convince their students that studying law is one of the highest pursuits of man. They delude you into thinking that lawyers are some of the most intelligent people in our society. Nothing could be further from the truth.
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right for once
and frequent large infringers, but only for patent attorneys in the short run. In the long run the system will collapse as inventors are switching to trade secrets.
They should have called the bill the America STOPS Inventing Act or ASIA, because that’s where it is sending all our jobs.
“This is not a patent reform bill” Senator Maria Cantwell (D-WA) complained, despite other democrats praising the overhaul. “This is a big corporation patent giveaway that tramples on the right of small inventors.”
"patent reform"
Senator Cantwell is right. Just because they call it “reform” doesn’t mean it is. The agents of banks, huge multinationals, and China are at it again trying to brain wash and bankrupt America.
The patent bill is nothing less than another monumental federal giveaway for banks, huge multinationals, and China and an off shoring job killing nightmare for America. Even the leading patent expert in China has stated the bill will help them steal our inventions. Who are the supporters of this bill working for??
Patent reform is a fraud on America. This bill will not do what they claim it will. What it will do is help large multinational corporations maintain their monopolies by robbing and killing their small entity and startup competitors (so it will do exactly what the large multinationals paid for) and with them the jobs they would have created. The bill will make it harder and more expensive for small firms to get and enforce their patents. Without patents we cant get funded. Yet small entities create the lion's share of new jobs. According to recent studies by the Kauffman Foundation and economists at the U.S. Census Bureau, “startups aren’t everything when it comes to job growth. They’re the only thing.” This bill is a wholesale slaughter of US jobs. Those wishing to help fight this bill should contact us as below.
Small entities and inventors have been given far too little voice on this bill when one considers that they rely far more heavily on the patent system than do large firms who can control their markets by their size alone. The smaller the firm, the more they rely on patents -especially startups and individual inventors. Congress tinkering with patent law while gagging inventors is like a surgeon operating before examining the patient.
Please see http://truereform.piausa.org/default.html for a different/opposing view on patent reform.
http://docs.piausa.org/
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Yes. For imposing such high potential infringement penalties and for imposing such small penalties for frivolous lawsuits. For granting such bogus patents encouraging more lawsuits. The law can do a lot to limit frivolous lawsuits. It can abolish patents or it can substantially alleviate their scope. but it chooses not to. The problem is with the law.
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Re: right for once
Where is your tin foil hat? We're all somehow being brainwashed by China's mysterious brainwashing mechanisms that can only be resisted through the use of a tin foil hat.
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More like " none of them address what I see as the problems of the system.".
Just because you say it (and a few of your anti-patent lawyer friends back you up) doesn't make it true. Opinion, a wonderful thing that we can all have.
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If only this were the argument that is being made. But it's not.
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I think part of the point is that frivolous patent lawsuits are already a huge problem. There is a lot the government can to do that will clearly and quickly make frivolous patent lawsuits far less attractive, both in the short term and in the long term. Yet it chooses not to and that should be of concern.
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Sht son, that's ez street. It's eligible because it is a composition of matter and presumptively there is some utility for it (just ask the inventor). It is novel and nonobvious because nobody has presented any evidence the contrary.
I know you're feeling supar smart today youngen, and while the masses may be rtarded still some of their issues are meritorious regardless of their explanation of the issue.
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Re: Re: The T-Word
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Patent reform
I made a prediction some years ago that the whole patent system would one day dissolve in a sea of uncontrolled litigation. It looks now like we're headed in that direction and well on the way.
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Bully for you and the SV folks. Unfortunately, you've only spoken to a narrow field of patent attorneys, ones who may cater to a particular industry and therefore may not be the most objective judges of the AIA.
Furthermore, just because you've read the AIA many times does not mean that you fully understand it. Your understanding of the subject can only be proven by demonstration (i.e., explaining what the AIA means). Bald assertions of understanding and appeals to conversations you've had with SV patent attorneys are not convincing.
Again, a functioning change is one that decreases the need for lawyers, not increases it. One that increases the need for lawyers is a broken system, as it is increasing expense without increasing innovation. This is not an opinion, that is a fact.
No, that's an opinion. You're making a value judgment, which is inherently based on one's beliefs and morals. A judgment of whether something is "better" can be based in facts, but it does not make the judgment a fact in and of itself. And just like any opinion, your opinion is subject to scrutiny and reasonable debate. Coloring your opinion as fact is the height of arrogance.
For those who prefer substance to our obnoxious law student's snotty attitude, you can check out Mark Lemley's analysis of the changes wrought by AIA here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1929044
You know what's interesting? Prof. Lemley cited 20 changes effected by the AIA, a number of which I would consider quite significant, and you still claim that the AIA "won't actually do much to improve our broken patent system". No?
Assuming that you think fewer patents are better, you're telling me that the expansion of what is potentially prior art during prosecution "won't actually do much to improve our broken patent system"? You think that the changes regarding multi-defendant patent lawsuits "won't actually do much to improve our broken patent system"? Really?
Perhaps if you would care to explain why, then you can really demonstrate how well you understand the AIA.
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