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Table of Contents Introduction I. Study Design and Methodology A. Why Words Matter B. The Data Sets C. The Results 1. Time 2. Technology 3. Foreign Actors 4. Prior Art [...], Technology is always changing. Patent law is also constantly evolving, as the courts and Congress continue to make significant changes to this area of law. But what about patents themselves? Some studies have looked at how patent specifications have changed over time, but no one has looked specifically at the most important aspect of a patent, its claims. Given the changes in technology and law, one would anticipate patent claims to have evolved. Despite the expectations, this paper concludes that patent claim shape is largely unaffected by time, technology, crowded fields, or prosecution time. This paper suggests a possible reason why claim length appears incommensurate with technology and unaffected by other factors. Specifically, patent claims are drafted to 'look good, ' regardless of the underlying technology or any other factor that should figure into claim length.

Today's technology standards are the result of an extraordinary amount of innovation, collaboration and competition. These concepts are interrelated, and each is enhanced or enabled by intellectual property. Where these three concepts come together in standards development, it is unsurprising that antitrust concerns are also present. Specifically, the interests of contributors, participants, and implementers must be fairly balanced to ensure that the appropriate types and levels of innovation, collaboration, and competition can occur--and that the public will benefit. It is important that antitrust enforcement involving standards development organizations and owners of standards essential patents recognize the careful balance of these three concepts. If antitrust enforcement elevates one goal--say competition--at the expense of collaboration and innovation, or if one set of actors in the standards development ecosystem--for example, implementers--is preferred over the other actors, there will likely be devastating effects on the standards development ecosystem. The tension between innovation, collaboration, and competition in the standards development arena, as well as the divergent interests of contributors, participants, and implementers are not new. Between 2015 and 2019, however, the viewpoints of the FTC and DOJ diverged in how they handled the tension. This paper argues that we must look carefully at the underlying policies driving the agencies' behavior: both the outmoded viewpoints that the FTC is pressing as well as the innovation-positive perspective that has shaped the DOJ's actions in recent years. By amplifying the modern perspective and focusing on creating the right incentives for the right reasons, future imbalances that harm innovation, collaboration, and competition in the standards world can be avoided. History has shown that time and market forces provide equilibrium in balancing interests, whether the new technology is a video recorder, a personal computer, or now the Net. - Steve Blank. [ABSTRACT FROM AUTHOR]

I am delighted to have participated in the Second Annual Intellectual Property Redux Conference and to publish this essay. I rarely look back at my older articles, but in Fall 2018 I was asked to give a keynote address at a conference held by the Biotechnology Innovation Organization (BIO), where the organizers asked me to speak about 35 U.S.C. § 101 and patent-eligible subject matter. In preparing my remarks, I had the opportunity to refer back to one of my earliest scholarly pieces--a 2007 article entitled Ants, Elephant Guns, and Statutory Subject Matter, published in the Arizona State Law Journal. It turns out, over the past twelve years, the only thing that has substantially changed in that time is how I refer to the issue, now preferring "patent-eligible subject matter" to "statutory subject matter." However, there are some recent and coming changes to patent eligibility; in this essay, I will explain how some of these new changes finally move forward the proposals I made in 2007. [ABSTRACT FROM AUTHOR]

The doctrine of patent-eligible subject matter is a mess, and it is weakening patent rights in this country. Nearly everyone, from the bar to the bench and from academia to industry, has called for reform. Multiple proposals to amend 35 U.S.C. § 101 have been drafted, each aimed at trying to make the doctrine more workable. Although offered with the best intentions, the proposals to fix patent-eligible subject matter are doomed to fail because none of the proposals address which institution is best suited to determine patent eligibility. This Article takes a different, and perhaps radical, tactic. Specifically, patent-eligible subject matter inquiries should be vested solely in the courts. The U.S. Patent and Trademark Office (Patent Office) should not consider patent eligibility of patent applications or issued patents. Although this solution seems incongruous, in looking at the particular institutional competencies of the courts versus the various components of the Patent Office, it becomes clear that if the doctrine of patent-eligible subject matter is to be fixed, the courts are in the best position to do so. In addition to being particularly suited to determine patent eligibility, vesting these decisions in the courts should result in a more workable and certain test for patent eligibility, which in turn should strengthen patent rights and enhance innovation. [ABSTRACT FROM AUTHOR]

The article presents an essay on the importance of the U.S. Federal Trade Commission's study in understanding the many business models related to patent licensing. Topics discussed include impact of business models on innovation and competition, complexity of patent licensing business models, and role of patent licensing firms.

Everyone hates patent trolls--those companies that "hijack somebody else's idea" and use the patents to "extort some money" from companies that actually make things. But, despite the rhetoric, not all patent trolls are created equal. This Article is the first to focus on one type of patent troll-- the formerly manufacturing entity. These patent trolls used to make or do something in commerce, but now derive all or a significant portion of their income through licensing their intellectual property. Using case study analysis, this Article demonstrates that formerly manufacturing entities do not impose the harms associated with patent trolls more broadly and, in fact, provide unique benefits for commercialization of new technologies. Specifically, formerly manufacturing entities do not "sneak up" on manufacturing companies, waiting for them to invest extensively in a technology before seeking a license. Rather, the technology and the patents are already out in the open, having been practiced by the patent troll. Further, because formerly manufacturing entities have already worked to commercialize the technology, they are in a much better position to assess its value, as well as the costs and risks associated with bringing it to market. We should recognize the benefits formerly manufacturing entities add to commercialization and, in the larger scheme, ensure that potential patent reform measures and judicial solutions to the patent troll problem are carefully drawn so as not to do more harm than good. [ABSTRACT FROM AUTHOR]

The analytical framework being used to assess the patent eligibility of software and computer-related inventions is fraught with errors, or bugs, in the system. A bug in a schema, or framework, in computer science may cause the system or software to produce unexpected results or shut down altogether. Similarly, errors in the patent eligibility framework are causing unexpected results, as well as calls to shut down patent eligibility for software and computer-related inventions. There are two general schemas that are shaping current discussions about software and computer-related invention patents--that software patents are generally bad (the bad patent schema) and that software patent holders are problematic (the troll schema). Because these frameworks were created and are maintained through a series of cognitive biases, they suffer from a variety of bugs. A larger flaw in the system, however, is that using these two schemas to frame the issue of patent eligibility for software and computer-related inventions misses the underlying question that is at the heart of the analysis--what is an unpatentable "abstract idea." To improve the present debate about the patent eligibility for these inventions, it is therefore critical that the software patent system be debugged. [ABSTRACT FROM AUTHOR]

A conference paper on the protection of the patent rights is presented in March 2011 at the University of the Pacific, McGeorge School of Law Symposium. It informs that patents are the intellectual property rights granted by a government to encourage disclosure of new technologies and induce companies to invest in innovation. It discusses the World Trade Organization (WTOs) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) that regulate patent law and human rights.

The article discusses the life and alleged death of the doctrine of equivalents including where the doctrine comes from and why many commentators presume or pray for it to be moribund. It details the notions from cognitive linguistics specifically its categories, prototypes and members. It explains why cognitive linguistics demonstrates that the underlying notions behind the doctrine of equivalents are present in everyday human understanding of language.

The article provides a linguistics-based framework in considering claim construction. It describes the characteristics of daily conversation and how it is interpreted, explains what patent conversations look like and their similarities and differences from everyday conversation and applies the theories of interpreting daily conversation to patent conversation. It cites the need to examine first the characteristics of everyday conversation before applying it to patent conversation.