Patent examiners have an extremely hard job. They’re given a patent application—which could be anywhere from a page long up to hundreds of pages, with patent claims ranging from a couple sentences to pages of description—and expected to understand the technology behind the application, look for any possible examples of prior art, describe how the…
Blog Posts
Is § 101 Impossible To Understand? Survey Says: No
by Josh Landau • • 3 Comments
Critics of the Alice/Mayo framework for § 101 patentable subject matter tend to claim that it’s impossible to understand or apply. Thanks to an enterprising 3L at Stanford, we now have survey evidence that the critics (and Judge Michel) are wrong. It’s time to play…. § 101 Feud! From Various Parts, It’s… § 101 Critics…
PTAB Rejects Allergan’s Tribal Sovereign Immunity Claim
by Josh Landau • • 1 Comment
On Friday, the Patent Trial and Appeal Board (PTAB) issued a ruling rejecting Allergan’s sovereign immunity claims. As Patent Progress has previously described [1][2][3], Allergan sold their patents to a Native American tribe, licensed them back, and required the tribe to claim sovereign immunity against inter partes reviews. But, as also previously described here, there…
A New § 101 Trio Shows That We Don’t Need § 101 Legislation
by Josh Landau • • 3 Comments
The Bilski, Alice, Mayo, and Myriad cases are sometimes referred to as a § 101 quartet because they set forth the Supreme Court’s test for patentable subject matter under § 101. Over the past few weeks, we’ve seen a new trio of § 101 cases emerge from Federal Circuit panels—Berkheimer, Aatrix, and Automated Tracking. The…
Innovation Is Alive And Well—Patenting Activity
by Josh Landau • • 2 Comments
After examining the evidence for U.S. innovation as shown by startups and venture capital, and by R&D spending, I want to look at patenting activity—new patent applications and new patent grants. Particularly given accusations that the U.S. patent system has fallen behind other systems worldwide—accusations based on extremely questionable analysis—it’s worth looking at what patent…
Chamber of Commerce Patent System Ranking Is Built On A Shaky Foundation
by Josh Landau • • 4 Comments
The Chamber of Commerce produces a yearly ranking of intellectual property systems around the world. This year, they dropped the U.S. patent system to 12th. If I thought their rankings had any merit, I might be concerned by this change. Unfortunately, their analysis is flawed and based on complete misrepresentations of reality. So, What Happened?…
Innovation Is Alive And Well—R&D
by Josh Landau • • 3 Comments
As part of Patent Progress’ series on innovation in the United States, we are examining ways to measure innovation. One useful metric, measuring the investment being made in the creation of new and innovative technologies, is research and development spending. This metric tends to show the investment in innovation, in particular by larger companies. And…
Dear Director Iancu
by Josh Landau • • 5 Comments
So, you’re Andrei Iancu, about to be the newly confirmed Director of the United States Patent and Trademark Office. What are the first things you put on your agenda? I have some suggestions. Eliminate Contingent Amendments As an initial matter, the PTAB’s practice of allowing contingent amendments needs to end. Essentially, this allows patent owners…
Innovation Is Alive And Well—Startups and Venture Capital
by Josh Landau • • 4 Comments
Innovation can come from anywhere—large established companies, individuals, and of course, small startup businesses. The innovation from startups can ultimately create new established companies. Many of today’s household names—Amazon, Google, Facebook, Intel—started out as a couple of founders and one innovative idea. So, if we want to see if innovation remains an important part of…
Innovation Is Alive And Well
by Josh Landau • • 7 Comments
During 2017 we saw the 5 year anniversary of the America Invents Act and 7 years of post-Bilski jurisprudence (including Mayo, Myriad, and Alice). And there are also reports that innovation in the U.S. is falling. That makes it a good time to look at the real world impacts of these changes on innovation. The…