Patent trolls celebrate as Trump's new rules breathes fresh life into parasitic grifter capitalism


#23

I have learned to carefully follow the money when analyzing complex situations. All the rest is distraction. When you follow the money, the Patent industry looks just like a Fiddle Game fraud. This Fiddle fraud is conducted as a Long Con that makes extensive use of the Sunk Cost fallacy to fool the victims into believing they are getting a valuable thing. The con plays out like this:

  1. Presentation: For a reasonable investment, you TOO can have a valuable patent from the USPTO. Pay initial filing fee (maybe as little as $300) and initial patent attorney charges (A few thousand dollars.)
  2. Extract money from the mark: During the extraction phase, the Examiner and your patent attorney cooperate to extract money from you. This phase takes at least 2 years. It consists of multiple interactions where the filing is discussed and altered. The mark is threatened with rejection multiple times. But, each threat is simply a “pay more money” signal. So, each time, the mark shrugs, makes a few changes, and pays more in Examination and attorney fees. The mark puts up with it because everybody knows that for over 20 years, the USPTO has maintained a net grant rate of 90% or more.
  3. At about the 2 year anniversary, the filing is approved or rejected. The rejection is just another “pay more money” signal, and the mark is encouraged to refile a Continuing Application, and go back to step 2. This repeats until the patent is approved. The patent is almost always eventually approved…
  4. After the approval, the mark has invested vast amounts of time and money (possibly millions of dollars.) The Sunk Cost fallacy deceives him into believing he has received a valuable object, but he really just has a worthless license to sue. Even back in 1999, the Lemley paper (Rational Ignorance at the Patent Office) realized that “…very few patents are actually litigated or licensed;” The mark’s deception usually leads him to dump more money into the worthless patent at each Maintenance Fee interval (3.4, 7.5 and 11.5 years). These mainenance fees are the biggest single component of USPTO revenue. And, of course, each is accompanied by an additional fee to the mark’s patent attorney.

At this point, everybody in the Patent Industry has become deceived into believing in the value of US patents. They have all invested so much, that it MUST be valuable. But, the vast majority of US patents are just worthless, unused, unlicensed, grounds to sue an industry.


#24

Um…welcome to BoingBoing?

Insulting and patronizing the authors and commentariat with your first post is not an innovative introduction. I apologize to anyone who is required to work with you in your professional role as a patent attorney, if this is how you treat those people.

I’m not a patent attorney, but I’m an inventor who has worked in both very large and very start-up businesses. Your point one is, at best, horribly biased. Trolls, by definition, use are individuals or companies that have no intention of bringing products or technology to market. Their business model is to use IP to collect unearned rent from people and companies who actually make things. Your point 2 is plainly refuted by the numbers. A random word generator plugged into the right format would have a decent chance (after paying the right fees and having the right patent attorneys arguing the case) of being granted. One could also just browse recently-granted patents to see the utter crap that gets through.

Others have already tackled the rest. My guess is that Cory hit a nerve with you, and you might want to check the mirror.


#25

An overdose of Diet-Coke drove me to analyze the USPTO<>Public interactions described in the 2017 Accountability Report. This presents an intriging glimpse into the ongoing regulatory capture of the USPTO by the Patent Industry. The interesting thing is that the USPTO appears to be blissfully unaware of the Regulatory Capture process. They think they are serving the public good, but all their input and interactions are influenced by a small subset of the public. Regulatory Capture is probably inevitable in this environment.

The key indication is the extensive use of the phrase “stakeholder” to represent the public interest. The reality is just the opposite. These stakeholders are those who buy into the game. The USPTO describes them in various places as: judges, prosecutors, patent and trademark examiners, patent and trademark attorneys, patent and trademark seekers, and IP office administrators. This ARE the people who interact with the USPTO. They are part of the US public. But, they are not the public, nor do they represent the public’s interests.

The reason why this is important is that the USPTO routinely sells parcels of the public interest. They sell monopolies. That is, they sell restrictions on the behavior of the entire US public. The rest of the public has a right to control this activity, but, our influence has been eliminated.

You can judge this process for yourself. The rest of this post is the all the descriptions of public interaction that I could find in the 2017 USPTO Accountability Report

We will continue to engage with the public to identify ways to streamline.. (pg 2) 

..outreach included a public meeting to report on the comments received and to engage in a
robust discussion with stakeholders regarding the proposal. (pg 2)

U.S. stakeholders. Participants included officials with IP-related responsibilities 
such as judges, prosecutors, patent and trademark examiners, and IP office administrators. (pg 3)

We are also committed to working with the IP community through a variety 
of public engagements.. (pg 3)

This report demonstrates to Congress, the administration, and to the public the USPTO’s efforts to 
promote transparency and accountability .. (pg 5)

Continue and Enhance Stakeholder and Public Outreach. (pg 17)

.. make adjustments to ensure that the USPTO fee schedule both supports sound public policy and
generates sufficient income to fund agency operations. (pg 18)

Failure in these areas could result in the agency’s inability to fulfill the 
performance commitments it makes when setting fees, as well as loss of customer and 
stakeholder confidence. (pg 18)

The USPTO has implemented a thoughtful and transparent fee-setting process to ensure Congress and
stakeholders will entrust the USPTO with fee-setting authority beyond the sunset date. (pg 18)

Our unmodified audit opinion provides independent assurance to the public that .. (pg 24)

..the USPTO shared fee adjustment proposals with its public advisory committees and the public. (pg 37)

The final fee schedule is responsive to stakeholder concerns as  expressed during the public comment
period .. (pg 38)

After carefully considering stakeholder feedback, the USPTO has revised its plans, and an adjusted patent
fee setting package is expected to be finalized in early FY 2018. (pg 38)

Continue to improve relations with employees and stakeholders. (pg 43)

.. the commitments made to the fee-paying public. (pg 48)

The P3 was launched as part of the USPTO’s commitment to collaborate with stakeholders .. (pg 50)

.. survey data received from both participating office personnel and external stakeholders.. (pg 50)

.. expand Customer Partnership Meetings in an effort to provide an informal conduit for all
stakeholders to share insights and experiences.. (pg 51)

.. The increased interactivity between the USPTO in specific technology areas and external
stakeholders aims to enhance relationships and improve resolution (51)

Extensive internal and external stakeholder outreach will continue throughout the project.. (pg 53)

This should reduce costs and lead to greater predictability for the industrial design stakeholders. (pg 53)

.. through collaboration with internal and external stakeholders of the IP community. (pg 53)

in collaboration with stakeholders, the USPTO identified three areas of focus.. (pg 54)

Perception Indicators use both internal and external stakeholder surveys to solicit 
information.. (pg 54)

The Stakeholder Training on Examination Practice and Procedure (STEPP) Program 
was created based on public feedback and is a new and important part of USPTO’s 
mission to deliver IP information and education to external stakeholders. Training 
delivered through STEPP is designed to provide external stakeholders with a better 
understanding .. (pg 55)

.. monthly webinar designed to provide information on patent quality topics and to gather
the public’s input. (pg 55)

OBJECTIVE 6: CONTINUE AND ENHANCE STAKEHOLDER AND PUBLIC OUTREACH 
Expanding the USPTO’s regional presence enhances its commitment to reaching 
stakeholders across the country. (pg 56)

PTAB E2E is a fully integrated IT system designed to meet the specific business needs of the PTAB 
and its stakeholders. (pg 58)

..however, the time has come to transition to a new system to better serve the needs of the public. (pg 58)

The USPTO and its trademark stakeholders consider these to be optimal pendency rates. (pg 61)

.. the USPTO managed resources and staffing to maintain the timeliness that the agency’s stakeholders
have come to expect. (pg 61)

The USPTO has sustained optimal pendency (see Tables 8 and 9), which is an important indicator for 
stakeholders when making business decisions. (pg 61)

The USPTO will continue to engage with the public to identify ways to streamline 
processes.. (pg 63)

The USPTO continues to engage stakeholders in verifying trademark-quality findings; (pg 64)

..more reliable for USPTO employees, trademark applicants, trademark owners, and the public at large. (pg 65)

OBJECTIVE 4: CONTINUE AND ENHANCE STAKEHOLDER AND PUBLIC OUTREACH .. Roundtables were held in
conjunction with different stakeholder groups, including multiple bar associations such as the
American Intellectual Property Law Association (AIPLA) and the International Trademark
Association (INTA), in cities throughout the United States. (pg 65)

The event was designed to educate the public about the instrumental role that trademarks play .. (pg 66)

Engagement of Stakeholders for the Trademark Registry (pg 67)

.. as advocated by stakeholders, the USPTO is developing proposals for streamlined cancellation proceedings.. (pg 67)

The USPTO published a Request for Comments in the Federal Registerin May and held a public roundtable
in September .. (pg 67)

.. the USPTO co-hosted its first ever public roundtable on fraudulent solicitations with the
Trademark Public Advisory Committee. The objectives of the event were to educate the public.. (pg 68)

..continue to collaborate with other federal agencies to educate the public.. (pg 69)

Cooperation With Global Peers and Stakeholders (pg 69)

..met with various stakeholder groups in FY 2016 to explore options .. (pg 70)

.. outlining such a streamlined process and seeking stakeholder input. 
Comments submitted in response were collected and discussed at a public meeting.. (pg 70)

.. welcomes comments on the utility of these measures from the TPAC and other stakeholders. (pg 70)

These updates facilitated the work of the Board’s paralegals and attorneys and also aided
stakeholders using these systems. (pg 70)

Committed to proactively engaging with the public regarding Board operations, the TTAB 
continued its partnership with the PTAB in offering joint hearing programs at two law 
schools, Suffolk University Law School in April 2017 and the University of Minnesota Law 
School in September 2017. (pg 70)

Throughout FY 2017, USPTO officials provided policy formulation and guidance by 
organizing numerous briefings for congressional staff and by conducting public meetings 
to solicit stakeholder views on a range of IP policy matters.. (pg 74)

Report on Patent Subject Matter Eligibility  In 2017, the USPTO published Patent Eligible
Subject Matter: Report on Views and Recommendations from the Public, synthesizing public comments
on an important question for innovators in a wide variety of industries: the appropriate boundaries
of patent-eligible subject matter. This was the product of roundtables held in November and December 
2016, and a request for public comment in the wake of four Supreme Court decisions—Bilski, Mayo, 
Myriad, and Alice—that significantly affected patent eligibility law. The useful 
feedback that the USPTO received will help ensure that the views and concerns of the 
innovation community are part of any future policy considerations. (pg 74)

This work included organizing a public meeting in December 2016 
on developing the digital marketplace for copyrighted works, and continuing to engage 
with stakeholders and monitor developments; organizing a public meeting in April 2017 on 
consumer messaging in connection with online transactions involving copyrighted works; 
and consulting with stakeholders on how to reach a better understanding .. (pg 75)

To raise public awareness of the issue, the USPTO, together with the TPAC, held a 
roundtable on this topic.. (pg 76)

Throughout FY 2017, the USPTO released new and updated datasets in forms convenient 
for public use and academic research on matters relevant to IP.. (pg 77)

Throughout FY 2017, the USPTO continued to engage Congress, other U.S. government 
agencies, local elected officials, and stakeholders to discuss .. (pg 78)

The USPTO worked throughout FY 2017 to improve IP protection and enforcement for U.S. 
stakeholders in China. (pg 79)

Other notable outreach efforts to U.S. stakeholders in FY 2017 included participation in .. (pg 80)

During its first 10 years, the IP5 has delivered a number of successful products and 
services to its stakeholders, including Global Dossier, a public service that enables users to 
monitor, via a single online source, how a family of patent applications is processing.. (pg 82)

This USPTO-led initiative, and the resulting studies, provided U.S. and other industrial
design stakeholders with a better understanding (pg 83)

..help improve IP systems in key countries and regions for the benefit of U.S. stakeholders. (pg 84)

..ensured that all the attachés continued to promote U.S. policies and U.S. stakeholder 
interests overseas. (pg 85)

..worked to enhance interactions between attachés and stakeholders, including through roundtables
and meetings with rights-holder groups .. (pg 85)

.. meetings are attended by internal TMNG stakeholders .. (pg 90)

The USPTO has an enterprise data inventory that includes patent-, trademark-, 
and policy-related data that are used by independent inventors, companies (from startups 
to large corporations), law firms, strategic patent analytics companies (e.g., Bloomberg, 
LexisNexis, Thomson Reuters, etc.), academia, other government agencies, foreign IP 
offices (e.g., EPO, SIPO, KIPO, and JPO), and the public at large. (pg 91)

..improve the discoverability, accessibility, and usability of the USPTO’s valuable public
patent and trademark information. (pg 91)

..interfaces (APIs) to provide the public with better access to the USPTO’s data. (pg 91)

employee engagement plays in impacting the agency’s ability to fulfill its mission and
effectively and efficiently serve the public. (pg 91)

.. the regional offices held over 1,000 events, reaching over 80,000 independent inventors and IP
related stakeholders. (pg 100)

.. the Texas Regional Office presented Spanish and Mandarin Chinese programs to non-English 
speaking stakeholders around Texas. (pg 100)

OBJECTIVE 4: SECURE SUSTAINABLE FUNDING TO DELIVER VALUE TO FEE-PAYING CUSTOMERS AND THE PUBLIC (pg 101)

The USPTO has received and considered public comments.. (pg 102)

The regional offices communicate policy through active engagement with stakeholders 
across the country. They function as conduits for policy matters by participating in events 
such as PTAB Bar Association events, National Association of Patent Practitioners (NAPP) 
meetings, AIPLA meetings, and state bar association meetings. In addition, all of the 
regional offices host policy-related events throughout the year, such as events for 
World IP Day and Design Day, which bring together a broad range of stakeholders—
patent prosecutors, litigators, inventors, academics, and patent examiners—for a public 
discussion on the state of IP law. These engagements provide IP stakeholders with a forum 
to discuss and share their perspectives on the IP ecosystem. (pg 104)

Each regional office is equipped with several universal public workstations, which 
enable members of the public to work with tools.. (pg 105)

After carefully considering stakeholder feedback, the USPTO has revised its plans .. (pg 107)

.. to ensure that the USPTO fee schedule both supports sound public policy and generates sufficient
income to fund agency operations and investments. (pg 107)

The final fee schedule is responsive to stakeholder concerns as expressed during the public
comment period.. (pg 161)


#26

Allowing patent applicants to expand their applications to include new matter does not extend the life of the patent, it only ensure that the new matter will eventually be turned over to the public.

Except when that new matter was already in the public domain and the expanded application removes it from the public domain for 20 years.

It hardly seems reasonable to suggest that patents remove things from the “public domain”. Copyrighted subject matter might not be easily distributed, but patented subject matter just isn’t exploitable for profit – and even then, only if the patent holder decides to litigate.

The USPTO 2017 Performance and Accountability report never directly states fhe Filing fee percentage. They lump it in with other fees. But is states that total revenue for 2017 is $2.8 billion, and that “Application fee revenue earned upon filing in 2017” was $81.2million (pg 31). 81.2/2800 is .029 or 3%

You are aware that merely because a patent application is filed does not mean that it will actually be examined, right? There are separate fees for search and examination, and they would be required whether the patent was issued or not.

The mark puts up with it because everybody knows that for over 20 years, the USPTO has maintained a net grant rate of 90% or more.

I’m not completely sure how Cotropia et al. are arriving at that figure, but it seems a little spurious. Table 4 suggests that from 1996-2005 they were allowing more than 100% of applications, for example.

Page 1 (or page 3 of the PDF) suggests they are concerned that “[b]ecause applicants can refile their applications time-after-time the only way the USPTO can rid itself of persistent applicants is to allow their applications”. But that’s hardly true – applicants aren’t going to file time-after-time because filing costs money and if an examiner found an application to be unpatentable the first time, there’s no reason the examiner’s arguments will suddenly cease to apply the second time. No one would give John Quincy St. Clair a patent for a magnetic monopole spacecraft simply because he is persistent.

At this point, everybody in the Patent Industry has become deceived into believing in the value of US patents. They have all invested so much, that it MUST be valuable.

It’s not necessarily the “patent industry”. I expect there are companies that eagerly go to their shareholders and say, “Look what a great company we are! We filed a whackload of patent applications this year! We’re innovative!” And they very much hope that none of their shareholders actually take a closer look and find out that their issued patents are so specific that they could be trivially circumvented.

The reason why this is important is that the USPTO routinely sells parcels of the public interest. They sell monopolies. That is, they sell restrictions on the behavior of the entire US public.

A patent is by definition a government grant, yes. None would say otherwise.

The rest of this post is the all the descriptions of public interaction that I could find in the 2017 USPTO Accountability Report.

I don’t know what that’s supposed to prove.


#27

I dont think you understand my situation.

Granted, you didn’t get that I was kind of using hyperbole as a lament. I had assumed tragic sarcasm was understood when its that over the top. Do you really think that someone who would actually jump into a wood chipper would write such a thing?

I suppose it was finally a reflection on constant bad news since specifically Trump has become president, although in this particular case I didn’t say anything I have actually been following the state of patent trolling for a number of years. I have seen little change.

Eventually people just get tired of being miserable nothing ever changing for the good. I have actually done my share to change my country. I vote, I have actively canvassed for political campaigns I support, called and left messages on the phone lines of my Representatives, showing up at political rallies, have regular discussions with sane people about how to make things better, sign petitions with commentary, and basically am pretty engaged with the news and what is going on and doing what I can without violence to change the world for the better.

I am one of the people who actually did stay in this country despite the fact that many of my fellow countrymen are ignorant and reactionary jackasses- and I have seen it up close every day at work for the last 10 years with the kind of people I work with unfortunately. I have a college degree and went into manufacturing after the fact. I work with people who are often the exact opposite of my beliefs and I have been harassed and assaulted for what I believe on the job.

Yes there are some people that whine and do nothing. Typically then people who respond as you do are the same people who insist I should leave the country if I don’t love it. I have no patience for people like that anymore. I’ve done everything I can to stay and fix the mistakes but occasionally I just can’t take it anymore and everything feels pointless because it seems like there is an endless stream of assholes and in this case patent trolls just waiting to make the country a cesspool all over again.

Buy me that wood chipper and we can feed patent trolls into it together. Or more realistically, please do your part in your profession to help end this bullshit. It’s egregious and it needs to stop.


#28

Pretty much, yeah. Many serious or fatal road traffic accidents occur at or below posted speed limits, ergo speed limits do not guarantee road safety.


#29

Thanks Jorpho. Your comments have been quite helpful. I have been trying to avoid arguments over viewpoint and instead create “invitations to learn by viewing source material”, but my underlying logic and presentation tends to be a bit jittery. Must be all the caffeine :slight_smile:

walkensyndrome did me a great service by forcing me to read the Rational Ignorance paper. While I find Lemley’s conclusions to be naive, he presents a good overview of the patent enviironment as it existed back in 1999. The surprising thing is that very little has changed in the last 20 years. The main difference is that everything is bigger now. The current structure of the USPTO appears to be like a hurricane that is stalled over warm water. It’s environment supports and enhances it.

So then, I went looking through the USPTO’s Accountability Report for indications of it’s supporting environment. The first thing that popped out, was the limited nature of it’s associations. It appears to function in a “Information Bubble” that is more restrictive than anything dreamed by Facebook. I posted that long list of quotes, in the hopes that people would look at it and say: “That can’t be right.” And, then go read the Accountability report for themselves. Each of us should decide for ourselves if the USPTO represents our interests.

For good or ill, the USPTO acts for all of us. It makes decisions that effect all of us. We have a duty and right to control their activity. But, my reading of the Accountability Report suggests that the USPTO is currently shielded from our influence.


#30

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