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08.25.18

‘Cult of Patents’ Has Cheapened Patents and Nowadays Patent Law Firms Are Collapsing

Posted in America, Patents at 11:00 pm by Dr. Roy Schestowitz

Patents are becoming toothless, clawless

A male lion

Summary: The decline in patent quality is counterproductive in the long run; it assures that the patent system, especially the patent lawsuits element of it, loses momentum

THE concerns expressed by large law firms about EPO scandals aren’t out of date; they’re still applicable because António Campinos hasn’t changed anything at all; what about the USPTO, whose patents (that it grants) are often found to be invalid in patent courts, such as the Federal Circuit and sometimes SCOTUS too? The matter of fact is, if patents are improperly being granted, people will lose confidence in them. And this, in turn, would reduce demand for them, perceived value of them, and ultimately cause the collapse of patent law firms (which in turn get absorbed by one another in order to get enough ‘business’ such as litigation flowing). Last year we wrote several articles about the demise of patent law firms and patent trolls. The patent bubble had burst. We have not seen any potent rebuttal to this, albeit days ago Patently-O wrote about that old strategy of firms getting absorbed when they’re defunct. “One Example,” Patently-O said, came on “August 21, 2018 – Venable LLP, an American Lawyer Global 100 firm, and Fitzpatrick, Cella, Harper & Scinto, one of the world’s leading intellectual property firms, have reached an agreement for Fitzpatrick to join Venable.”

“Last year we wrote several articles about the demise of patent law firms and patent trolls.”Are patent lawyers a dying breed? Trying hard to find work and getting ‘bought’ as a publicity stunt for mere hirings? This is commonly done in the technology sector (hirings disguised as takeovers). There are even catchy words and phrases that describe these routines. Here is another new example that is only days old (“Stinson Leonard Street combines with St. Louis intellectual property firm”). M&A as publicity stunt? How about this (“Apprenda attempting to sell its assets after business shuts down”) from 5 days ago? Well, patents are not really “assets”; this metaphor just isn’t helpful at all.

“People who do patents for a living (not invention but mere patents) may think or even lie to themselves about doing ‘humanitarian’ work; but those on the receiving end of patent lawsuits and blackmail from patent trolls would beg to differ.”We remain convinced that in order for the patent system to maintain a sense of legitimacy it will need to improve patent quality. Days ago Managing IP wrote about the low quality of patents granted in China and Patently-O wrote about “USPTO China IP Roadshow at the University of Iowa College of Law”. China’s SIPO — like WIPO — demonstrates patent maximalism gone extreme. They don’t seem to care about patent quality at all. All they care about is numbers!

Not too long ago the USPTO celebrated 10 million patents (never mind if the ten millionth might be invalid). The USPTO even made a special subsite to mark this ‘event’ and IP Kat currently continues its dance with the ‘Cult of Patents’ (people who believe that the more patents the merrier, irrespective of their merit/quality). A few days ago the patent microcosm published this article which said:

The 10 millionth U.S. patent will largely be a celebratory event, but it has warranted a lot of preparation at the United States Patent and Trademark Office. Especially its IT department.

For the first time in more than 100 years—and for the first time in the computer era, of course—the patent office will issue patents with eight digits. The situation could be likened, somewhat, to the end of the 20th century and the Y2K scare—when old software code had to be upgraded so that software systems throughout the world would function properly when the year 2000 arrived.

Look how many patents used to be granted in the US 100 years ago, 50 years ago, 20 years ago and so on. It’s not innovation that’s accelerating. It’s just patenting activity that’s soaring.

The USPTO is well aware of the situation. It knows that it has become just a patent-granting ‘machine’ and Donald Zuhn — himself a patent maximalist — is one among several people who are now scrambling to paint a patent monopoly as a humanitarian thing. They have this thing called “Patents for Humanity,” again backed by the USPTO (like celebration of 10 million patents). To quote:

Earlier this month, the U.S. Patent and Trademark Office announced the latest winners of the Patents for Humanity program. The Patents for Humanity program, which was launched by the Office in February 2012 as part of an Obama Administration initiative to promote game-changing innovations to solve long-standing development challenges, is a competition recognizing innovators who use game-changing technology to meet global humanitarian challenges. Entrants are divided into five categories: medicine, nutrition, sanitation, household energy, and living standards. The Office noted that in this latest round, there were nine winners and six honorable mentions. Winners receive an acceleration certificate to expedite select proceedings at the USPTO (i.e., a patent application, ex parte reexamination, or an ex parte appeal to the Patent Trial and Appeal Board) in addition to public recognition for their work.

People who do patents for a living (not invention but mere patents) may think or even lie to themselves about doing ‘humanitarian’ work; but those on the receiving end of patent lawsuits and blackmail from patent trolls would beg to differ.

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