IQ, College, Engineering, Law, And National Merit Scholarships

College

Students who are below a 22 on the ACT composite, a 1073 on the new SAT composite, a 1610 on the older SAT composite, are not in the top 35% of his high school class (in a high school that is representative of the general population), or have below a B+ GPA, have a significantly impaired, low chance of graduating with a four year degree. 

This cutoff is not very sensitive to the selectivity or to the type of institution attended.

The threshold for any ordinary college program corresponds to an IQ of about 110 on a 15-point standard deviation scale or 111 on a 16-point standard deviation scale which is about the 75th percentile of the general population (a higher percentage because the general population includes high school dropouts who aren't included in SAT and ACT percentiles).

But a strong work ethic and grit can make it possible for you to graduate despite a lower IQ in many majors.  

Certain programs (e.g. some STEM programs such as math, physics and engineering), however, have a higher effective minimum threshold for a student to have a reasonable chance of graduating. Basically 0% of people who earn such a degree have an IQ of under 111 (and the threshold to have a better than 50-50 likelihood of graduating is an IQ of 119). Unlike some undergrad majors, engineering has a strong threshold effect.

Under 15-point standard deviation WAIS IQ scaling standard, an IQ of 100 is average for the population as a whole, an IQ of 105 is average for a high school graduate, and an IQ of 115 is average for a college graduate. So, an effective cutoff IQ of about 110 for a reasonable likelihood of graduating from college, fits with the concept that one must be discernibly better than average high school student to be likely to graduate from a college or university with a four year degree.

The Bar Exam

Maximal test prep can increase an LSAT score by about 3 point in the 120-180 range of the test. The maximum impact on other standardized tests scores is similar (but there is more room to improve in math than verbal on the SAT).

An IQ of 100 is roughly an LSAT score of 133, and almost no one who gets below 145 on the LSAT has any realistic chance of passing the bar exam. The bar exam is highly correlated with IQ test results. It takes an IQ of about 117 to pass the bar exam eventually after multiple tries, and the average IQ of a lawyer who passes the bar exam is about 133. (Medical school is much more selective.)

The patent bar is even harder to pass with a low IQ because to be a lawyer admitted to the bar and be a patent lawyer at the same time, you need an engineering BA (there are exceptions but similarly rigorous ones). 

National Merit Scholarships

About 2300 National Merit Scholarships were awarded in the year 2010. It turns out that just 10 elite universities accounted for well over half of these awardees. 

Number of NMS in entering class / size of entering class.

Caltech 42 / 200

Harvard 266 / 1600

Yale 234 / 1300

Princeton 196 / 1300

Stanford 110 / 1600

MIT 110 / 1000

Brown 91 / 1500

Duke 105 / 1600

Penn 125 / 2000

Berkeley 91 / 6000

Total 1270

Sixteen Years Of SCOTUS Patent Law Cases

There has been lots of U.S. Supreme Court action in patent law in the last 16 years (30 major cases are recited below, with one additional important case currently pending), which has collectively mostly weakened patent law, with some exceptions. 

There has been little major patent legislation since 2011 when the American Invents Act, which was the last major overhaul of U.S. statutory patent law was adopted. The AIA eliminated tax strategy patents (a case to resolve the issue had been pending when the legislative fix arrived).

 
A background report for Congress from the Congressional research service on patent law and procedure can be found here.

A major case deciding the constitutionality of part of the AIA and the remedy if it is unconstitutional is pending in Arthrex which has had oral arguments but not decision on the merits yet.

* Thryv, Inc. v. Click-to-Call Technologies, LP (2020) (7-2), the Court disagreed with the Federal Circuit and held that the PTAB’s decision on whether a petition for inter partes review is timely is not judicially reviewable replying on Cuozzo Speed Technologies, LLC v. Lee, 136 S. Ct. 2131 (2016).

* SAS Institute, Inc. v. Iancu (2018), the United States Supreme Court decided an important aspect of procedure in IPR cases holding that once an inter partes review is instituted by the Director of the USPTO, the PTAB must decide the patentability of all of the claims challenged.

* Sandoz Inc. v. Amgen Inc. (2017), the U.S. Supreme Court rebuffs the Federal Circuit on a patent law issue related to patent claims in products (basically drugs) biologically similar to products subject to an existing patent making it harder to "puppy guard" such a patent.

* Impressions Products, Inc. v. Lexmark Int'l, Inc. (2017), Reversing the Federal Circuit to weaken the rights of patent holders, the U.S. Supreme Court held that the first sale doctrine terminates all patent rights in an item, both in the case of sales in the U.S. and sales outside the U.S., even if the contract of sale purports to reserve patent rights in that particular item produces using the patent.

* TC Heartland LLC v. Kraft Foods Group Brands LLC (2017), In 1990, the Federal Circuit held that due to an amendment to the general venue statute that patent lawsuits could be brought in any district that has personal jurisdiction over the defendant. This gave rise to extreme forum shopping by patent trolls with the Eastern District of Texas arising as a very plaintiff friendly venue in which many patent infringement cases were brought, despite it having only minimal contacts with the patent holder. This 8-0 decision overrules the 1990 decision of the Federal Circuit and holds that the 1957 decision of the U.S. Supreme Court that patent lawsuits may be brought only in the state where a defendant is incorporated remains good law.

* SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC (2017), the equitable doctrine of laches cannot be used to bar the recovery of patent infringement damages incurred within the six year statute of limitations; this follows another recent ruling that laches does not bar the recovery of damages for patent infringement incurred within the three year statute of limitations.

* Samsung Electronics Co. v. Apple, Inc. (2016), in the case of a multicomponent product, the relevant “article of manufacture” for arriving at a [35 U.S.C.] §289 damages award need not be the end product sold to the consumer but may be only a component of that product.

* Limelight Networks v. Akamai Technologies (2014), liability for inducing infringement could not exist when there was no direct infringement (the conduct in question involved part of a patented process being carried out by one party, who allegedly urged customers to carry out the balance of the patented process themselves, so that no one person infringed)

* Nautilus v. Biosig Instruments (2014), the Court rebuked a standard for what kind of patent description was excessively vague that was absurdly indulgent to the patent applicant.

* Alice v. CLS Bank, Int'l. (2014), prohibited software that generically applied an abstract idea that is not otherwise patentable, have made it dramatically more difficult to obtain patents, particularly the subset of patents called "business method patents" which include most software patents. In January of 2004, only a little more than 2% of patent applications were rejected (on Section 101 grounds which governs what is patentable). By July of 2015, that percentage is about 15%.

Before Alice in July of 2014, about 31% of business method patent applications were rejected on Section 101 grounds (already a major increase from 2007 when the U.S. Supreme Court adopted a more expensive definition of "obviousness" under Section 101 for patent law purposes in KSR International v. Teleflex (see below), and 2010 when the U.S. Supreme Court in Bilski v. Kappos (see below) articulated a new (and functionally more restrictive) legal standard for granting software patents (although not as restrictive as the federal circuit case it reviewed which is linked), while affirming that software patents could still be obtained). After Alice, 82% of business method patent applications were rejected.

* Octane Fitness, LLC v. Icon Health & Fitness, Inc. (2014) (unanimous) and Highmark Inc. v. Allcare Management Systems (2014) (unanimous) (the Federal Circuit had set too high a standard for the recovery of attorneys' fees for frivolous patent prosecutions)

* Medtronic v. Mirowski (2014) (unanimous) (burden of proof wrongly placed on someone other than the patent holder)

* Association for Molecular Pathology v. Myriad Genetics (2013) (unanimous) (invalidated patents on naturally occurring DNA sequences)

* Gunn v. Minton (2013) (unanimous) (overruling Federal Circuit precedents which had held that federal courts have broad jurisdiction over claims of malpractice in attorney malpractice cases where the underlying malpractice involved patent law, while reviewing a Texas Supreme Court ruling)

* Mayo Collaborative Services v. Prometheus Laboratories, Inc. (2012) (unanimous) (district court's factual findings made clear that drug monitoring device patent merely restated a law of nature and was invalid)

* Caraco v. Novo (2012) (unanimous) (alleged infringers right to bring counterclaims expanded)

* Bowman v. Monsanto Co. (2012) (unanimous) (first sale doctrine does not invalidate ban on reproducing crops grown with patented GMO seeds)

* Kappos v. Hyatt (2012) (unanimous)(expanding ability of applicant denied a patent to challenge the denial with additional evidence)

* Microsoft Corp. v. i4i Ltd. Partnership (2011) (unanimous) (presumption of validity of patent continues to apply during patent re-examination process conducted by PTO).

* Stanford v. Roche (2011) (a case over who is entitled to a patent between two potential patent holders)

* Global-Tech v. SEB (2011) (8-1) (added knowledge of infringement element in claim for induced patent infringement)

* Bilski v. Kappos (2009) (unanimous to reverse, complicated holding as to extent of new law) (analysis to determine validity of business method patents tightened, dramatically narrowing their availability)

* Quanta Computer, Inc. v. LG Electronics, Inc. (2008) (unanimous) (disavows Federal Circuit doctrines allowing patent holders to limit use of patented device after a first sale)

* KSR v. Teleflex (2007) (unanimous) (tightened standard for obviousness in order to qualify for patent protection)

* MedImmune v. Genentech (2007) (8-1) (allows for contests of patent validity without risking liability by infringing patent prior to legal ruling on question)

* Microsoft v. AT&T (2007) (7-1) (U.S. patents laws don't have extraterritorial application; U.S. patent law doesn't apply to software copied abroad and not repatriated.)

* eBay Inc. v. MercExchange, L.L.C. (2006) (unanimous) (sets higher standard for obtaining injunctions once infringement is established)

* Merck KGaA v. Integra Lifesciences I, Ltd. (2005) (unanimous) (exemption from patent infringement applies to use of patented drugs for narrow purposes of research associated with FDA drug approval process)

A Bogus Patent On Podcasting Has Been Struck Down

Another blow for freedom.

A year after taking up the case, the US Court of Appeals for the Federal Circuit has ruled in favor of the Electronic Frontier Foundation in its challenge against podcasting patent troll, Personal Audio. The decision is a massive relief for the vibrant and ever-growing medium, which has been operated under the threat of lawsuit for a number of years. 

It’s also part of the EFF’s larger on-going fight against overly broad tech patents. And the organization doesn’t mince words. Daniel Nazer, who has been working closely on the case, is the EFF’s “Mark Cuban Chair to Eliminate Stupid Patents.” 

The case involves Personal Audio’s broad patent for a “System for Disseminating Media Content Representing Episodes in a Serialized Sequence,” which the company used to levy suits against a number of podcast providers, including Adam Corolla, HowStuffWorks, CBS, and NBC. The EFF filed a petition challenging the patent in 2013, urging the US Patent and Trademark Office to take another look at the broad ruling.

From here.

SCOTUS On Patent Law

SCOTUS to Federal Circuit: We Meant What We Told You The First Time

Today, the U.S. Supreme Court overruled the Federal Circuit again and held that the equitable doctrine of laches cannot be used to bar the recovery of patent infringement damages incurred within the six year statute of limitations. This follows another recent ruling that laches does not bar the recovery of damages for patent infringement incurred within the three year statute of limitations. The decision in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC was 7-1.

More analysis is available at SCOTUS blog.

This is a rare ruling that is pro-patent holder, even though it reverses the Federal Circuit. Patent holders are now about 4 pro to 17 against to 4 neutral in U.S. Supreme Court litigation implicating patent law since 2005, a period which also included the America Invents Act in 2011 which was a major reform of U.S. patent law.

A Long Awaited Patent Venue Case

On Monday, the U.S. Supreme Court will hear oral arguments on a bigger patent law case where it granted certiorari. In the case of TC Heartland v. Kraft, the petitioner asks the U.S. Supreme Court to reaffirm its 1957 decision in Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957), which held that venue was proper in patent infringement suits only in state where the defendant is located pursuant to 28 U.S.C. § 1400(b) (which has not been subsequently amended), and not also under the general venue statute for civil cases, 28 U.S.C. § 1391(c) (which has been amended since 1957), that would permit patent infringement suits to be brought anywhere that the defendant regularly conducts business.

This holding has led to widespread forum shopping in patent infringement cases (especially to the Eastern District of Texas which is known for its pro-plaintiff judges and juries in patent infringement lawsuits). 

A proposed bill in Congress to reverse this holding with bipartisan support that has been put on hold while it awaits a ruling from the U.S. Supreme Court. A decision for the petitioner in this case would be a major blow to patent holders because it would force them to seek much less favorable forums in which to bring suit, and yet another rebuke to the Federal Circuit for botching a seemingly straight forward case of statutory and case precedent analysis.

The Federal Circuit determined that the amendment of 28 U.S.C. § 1391(c) authorized it to revisit the U.S. Supreme Court's Fourco decision. In all likelihood, Monday's oral argument will reveal that the eight sitting Justices of the U.S. Supreme Court will almost unanimously disagree with the propriety of this decision and will signal a reversal of the often reversed Federal Circuit on this issue as well.

The outcome is telegraphed in part by the clarity of the issue, and in part because the Federal Circuit has exclusive jurisdiction over federal patent cases, so these cases are never taken up by the U.S. Supreme Court to resolve a circuit split where it may easily take either side of the split or some other approach entirely. Usually, Federal Circuit appeals of patent cases signal a likely reversal.

These two cases follow a long string of reversals of the Federal Circuit on patent law issues by the U.S. Supreme Court in recent years.

Exhaustion (update added March 22, 2017):

Another big case, Impression Products, Inc. v Lexmark Int’l, Inc., on the patent law doctrine of exhaustion (which is similar to the "first sale" doctrine in copyright law) was also argued on the day of the most recent patent law decision. The Justices are considering a case to limit that doctrine and thereby expand the rights of patent holders (e.g. to protect makers of proprietary ink cartridges for prints and proprietary coffee pods for coffee makers from products that refill them that are not made under license). Unlike copyright law in which the "first sale" doctrine is codified, the exhaustion doctrine was devised by Federal Circuit judges 25 years ago.

The case involves the doctrine of “exhaustion,” under which a patentholder’s rights to enforce its patent ordinarily are “exhausted” with regard to any particular object at the moment the patentholder sells the object. As applied to this case, for example, Lexmark’s rights to control the use of its patented refillable print cartridges would be “exhausted” when it sells those cartridges to retail buyers, even if Lexmark conditions the sale on the promise that the buyer will not refill the cartridge. That, at any rate, is the argument of Impression Products, which makes a business out of refilling Lexmark cartridges in violation of those agreements. Lexmark’s argument, by contrast, is that modern commerce requires that innovators have the flexibility to devise contracting structures that segment the market into separate sectors, each of which gets a different price commensurate with the uses to which products will be put in that sector.

The argument was to a "cold bench" leaving few hints regarding how the case will be resolved.

SCOTUS Redux

The U.S. Supreme Court ended its term with four decisions today. It is Justice Steven's last day on the bench, at least publicly. The theme for today as the Court decided the hard questions reserved for the end of the term was that the decisions were minimalist, deciding as little as possible to resolve the cases before it without setting clear guidelines to resolve the follow up questions that inevitably flow from its decisions.

The decisions:

1. In McDonald v. Chicago, the Court holds that the Second Amendment applies to the states to the same extent that it applies to the federal government; the standard of review is not determined. The decision is 5-4 with the usual conservative majority suspects; the minority votes not to incorporate the Second Amendment. A privileges and immunities clause expansion is rejected. The scope of Heller, which revived the right to possess a handgun for self-defense as an individual Second Amendment right subject to reasonable restriction of some sort, has not been fully established. Dicta in Heller which has been seized upon by the federal courts, suggest that almost all current federal gun control laws are reasonable restrictions on the Second Amendment right to bear arms, and presumably many state law restrictions would pass muster as well. But, there are many gray areas.

By clearly loosening the standard for incorporation of constitutional rights under the 14th Amendment Due Process Clause, the case also leaves open a slightly greater chance that some of the remaining few rights under the Bill of Rights that apply only to the Federal Government might be incorporated or might be incorporated more fully to apply to the states. The unincorporated rights include the right to indictment by a grand jury, the right to a civil jury trial, and the right to a unanimous criminal jury.

2. In Christian Legal Society v. Martinez, a requirement that all organizations be open to all students in order to receive funding through student fees at a public college is upheld. Some of the harder issues in the case were avoided because they were not preserved in litigation over facts that were stipulated.

3. In Bilski v. Kappos, the availability of business patents is narrowed, but they are not completely eliminated as they would have been under a ruling from the en banc U.S. Court of Appeals for the Federal Circuit. The method of hedging risk in the energy industry patented was invalidated on the basis that it was an abstract idea under existing precedents in a way that could be applied to many business patents. The precise scope of business method patents in future cases was not defined.

There were four votes to end business method patents entirely that did not prevail. But, those votes signal hostility on the court to a broad reading of business method patent scope.

4. In Free Enterprise Fund v. PCAOB, the Court holds that "the Public Company Accounting Oversight Board, was created as part of a series of accounting reforms in the Sarbanes-Oxley Act of 2002 . . . composed of five members appointed by the Securities and Exchange Commission" is unconstitutional as constituted, because "the SEC . . . cannot remove Board members at will, but only “for good cause shown,” “in accordance with” specified procedures . . . [and] the Commissioners, in turn, cannot themselves be re-moved by the President except for “ ‘inefficiency, neglect of duty, or malfeasance in office.’” Two layers of tenure remove the PCAOB to far from Presidential control. The remedy, the Court determines is to allow the PCAOB members to be removed at will by the SEC. The PCAOB otherwise continues undisturbed. The four liberal Justices, in dissent would have upheld the tenure protections for PCAOB members from the SEC as well.

Solicitor General Kagan has been nominated to replace Justice Stevens on the Court and is expected to be confirmed sometime this summer.

The Case For Patent Law Reform

Is patent law broken? How should it be fixed?

An empirically oriented new book on the subject, "Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk," by James Bessen and Michael J. Meurer (Princeton Univ. Press, 2008), looks at the issue and is reviewed in the link.

Bessen and Meurer's central thesis [is] that patents fail to "work as property." By this, the authors mean that patents, a type of "intellectual property" that protect rights in intangibles, fare badly when compared with private property systems that protect tangibles (such as land) -with deleterious economic consequences.

Specifically, the contemporary patent system fails to provide adequate notice of the legal rights patents confer, so that patent owners and potential infringers alike often cannot readily ascertain who owns what rights - a degree of legal uncertainty Bessen and Meurer argue would be intolerable in a system of tangible property rights. This "notice failure" (the inability to provide predictable property rights) undermines the economic utility of patents and therefore the effectiveness of the US patent system (pp.53-54). . . .

Bessen and Meurer criticize the PTO for allowing vague patent claims to issue, which are subsequently enforced by the courts (pp.57-58). They are also critical of the
practice of filing so-called "continuation" patent claims, which allow inventors to "hide" modifications to pending (and even published) applications and thus to delay public awareness of exactly what inventors claim as their property right - a practice that has grown seven-fold since 1984 (pp.62-63). Bessen and Meurer fault the Federal Circuit for failing to develop workable guidelines to assist lower courts in interpreting the meaning and scope of patent claims and for
employing a de novo standard of review for claim interpretation on appeal.
These practices prevent a definitive ruling on the meaning of patent claim language until a late stage in litigation, thus prolonging uncertainty as to what the relevant legal rights at issue are. The Federal Circuit and many district courts
also are to blame, the authors contend, for unduly expanding patent owners'
rights by increasingly interpreting abstract patent claims very broadly, particularly in the areas of software and "business-method" patents (pp.64-68). . . .

[T]he most important conclusion presented is that the benefits of patent ownership vary dramatically between industries. Indeed, the authors conclude that since the 1990s it is only in the chemical and pharmaceutical industries that the benefits of patent ownership clearly outweigh the costs (p. 140). For most other industries, particularly high-tech and computer and software companies, patents act as a disincentive to innovation (p. 141-46). . . .

Chapter 7 evaluates potential alternative explanations for the decline of the patent system, such as increasing business-tobusiness litigiousness, the rise of patent "trolls" - who enforce patents but do not manufacture or commercialize any products - or the supposed decline in patent examination quality in the PTO. Bessen and Meurer conclude that patent notice decline is the strongest explanation that comports with the empirical evidence. . . . And Chapter 9 focuses on the specific - and acute - notice problems associated with abstract software and business methods patents. . . .

The final two chapters of the book advocate for numerous reforms to both patent law and institutions . . . These reforms include: strengthening the "nonobviousness" requirement for patentability (p.236); instituting a deferential standard of review in the Federal Circuit to patent claim interpretations made by the PTO (during the application process) and the federal district courts (during patent litigation)(p.237); creating specialized trial-level patent courts (p.238); requiring patent
applicants to draft clearer patent claims and permitting the PTO to issue opinion letters on patent claim interpretation (pp.230-240); mandating early publication of patent applications and eliminating expansive post-application amendments (pp.242-243); creating special burdens for the patentability of most software and business-methods patents (pp.243-247); increasing the fees for required renewals of issued patents (p.247); and strengthening certain defenses to patent infringement lawsuits
(pp.248-25 1).

This agenda is having an impact.

The U.S. Supreme Court is well on the way in recent years to narrowing the scope of patentability generally, both through a stricter interpretation of obviousness in patent law, and a narrowing of the sorts of software and business method patents that can be secured. It has also opened the door to the notion that injunctions are not always available.

But, as is often the case, the factual argument about what is happening is stronger than the reform proposals. In my view, more radical reform is necessary.

The Case Against Ideas As Property

Legal rights that protect the economic interests of people who create valuable ideas are appropriate and even necessary. But, property rules don't fit the bill. A set of liability rules, drawing upon the law of restitution (also known as unjust enrichment), would work better. The intellectual property system needs to move from a property rights paradigm to an unjust enrichment paradigm.

In almost all cases, the presumptive remedy, as is the case in most unjust enrichment cases, should be compensatory damages in the form of money damages that reflect the monetary gain of the infringer and an additional amount representing the cost of enforcing those rights, in the form of reasonable attorneys' fees and costs. In cases of ongoing violations, a court imposed royalty is a suitable sanction.

Injunctive relief, punitive penalties, and criminal sanctions, which make sense in the property rights paradigm do not make sense in an unjust enrichment setting. The harm is not in making a worthwhile product with a new idea, but in failing to afford the true creator a fair share of the profits. Penalties under the current regime, like statutory damages and criminal penalties are often grossly disproportionate to either the gain realized by the violator.

The gist of the "patent troll" concern is that one can be a snake in the grass, ignoring the losses taken on investments made by others with your ideas that fail, while cashing in on profits made by successful ideas that have been developed on the assumption that the person using the idea had clear title to that idea. While property rule work in "ex ante" negotiations, they aren't fair when someone emerges as an unanticipated holdout who can prevent an enterprise from going forward, that holdout can demand far more in returns than would have been negotiated for if the patent owner had been know early on the in development process.

Depriving the public of a valuable product created using a good idea until a newly emerged creator of an idea that went into the end result can work out ownership arrangements is not a constructive response to the situation. Rather than mitigating damages, this harms all involved, including the person making the claim, whose potential pot of recovery is reduced if an injunction is granted. It also harms the public. For example, even if a flu vaccine is a blatant violation of a patent, reducing the amount that can be produced with an injunction makes far less sense than assigning most or all of the profits from the flu vaccine to the patent owner. If a proven way to cure a disease is out there, the public should not be deprived of it while the creators of the cure fight over shares of the profits.

The unjust enrichment analysis should look first, at what profits were actually earned from the venture, and second, what share of those profits the person with the idea could reasonable have expected to secure if his claims had been made known, the parties had negotiated in good faith, and an agreement that would not have prevented a venture from moving forward at all had been reached, before the venture got started.

In the case of a conceptually unified and simple invention, like a new medical drug, a large share of the net profits would have gone to the inventor, since drug manufacturing and marketing has become standardized and commodified.

In contrast, in the case of a complex invention that relies upon multiple separate innovations of different people, something typical in the high tech industry, the share of the inventors collectively would have been shared, unequally, with the least replaceable and most necessary ideas receiving the highest share of the profits, and the ideas that are secondary to the venture (e.g. allowing a product to have a less important feature, or solving a problem that could also be solved in other ways) a smaller share of the profits.

Similarly, assigning punitive penalties and criminal sanctions in the vast majority of situations where there is knowledge of a potential claim, but that claim is disputed for some reason and has not been finally adjudicated, is problematic. Normally, we don't assign punitive or criminal sanctions in disputable disagreements over business arrangements between commercial actors.

Famous cases involving patents claims related to established blockbuster products like the Blackberry, Microsoft Word and Windows Vista, illustrate the trouble with allowing patent injunctions and a property rights like price negotiation long after the profitability of these products has been established and they have gained widespread usage of critical systems by end users.

Plant Patents Irrelevant

A recent study on agricultural seed diversity finds that plant patents are irrelevant.

The Three Cases That Changed Patent Law

Three important court cases, one each in 2006, 2007 and 2008 have dramatically changed patent law for the better.

In December of 2005, at a time when a patent dispute threatened to shut down the entire Blackberry wireless PDA system, the Los Angeles Times argued on its editorial page that:

[T]he U.S. patent system is profoundly flawed. Too many patents are issued for "innovations" that are obvious, vague or already in wide use. Too many patent holders try to extend their claims to devices and services that weren't even contemplated when the patents were granted. And it's a difficult, costly exercise to overturn a questionable patent after it has been awarded.

Compounding the problem, federal courts have been quick to hand patent holders a sledgehammer when their patents have been infringed. The appeals court in Washington takes the position that, except in exceptional circumstances, courts must issue permanent injunctions to stop infringers from using the inventions in dispute.

Research in Motion, which owns the Blackberry patent, ultimately caved and settled the patent case against it for more than $600 million. But, the law soon changed.

A few months after the Blackberry case settled, the U.S. Supreme Court issued a unanimous ruling in eBay Inc v. MercExchange, L.L.C., 547 U.S. 388 (2006). The ruling reduced the availablity of injunctive relief in patent law cases by holding that:

[A]n injunction should not automatically issue based on a finding of patent infringement, but also that an injunction should not be denied simply on the basis that the plaintiff does not practice the patented invention. Instead, a federal court must still weigh the four factors traditionally used to determine if an injunction should issue whenever such relief is requested.

The following year, the Supreme Court came to a unanimous decision in KSR International v. Teleflex, that broadened the definition of "obviousness" for patent law purposes beyond the narrow test previously applied by the U.S. Court of Appeals for the Federal Circuit. Since "obvious" inventions can't be patented, this narrowed the scope of matters which can be patented.

The "obviousness" test is particularly important in business method cases, because many are borderline obvious. As I explained at the time:

The SCOTUS analysis in KSR holds that patents must be reviewed to see if the proposed solution is obvious to solve any problem, not just the problem identified in the patent. It holds that "prior art" includes not just prior efforts at solving the problem identified in the patent, but also prior efforts to solve similar problems in other fields. And, finally, it ruled than when there are only so many ways to solve a problem which a skilled person in the field might have considered, that all of those possibilities are obvious, because that solution would have been "obvious to try" for a skilled person in the field, even though a skill person in the field would not have known just which solution would work best until a little experimentation was conducted.

Yesterday's en banc decision of the U.S. Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over patent appeals, was no doubt emboldened by the two previous unanimous decisions of the U.S. Supreme Court. The In re Bliski decision further narrowed the scope of patentability, primarily in business patent cases, that have come under attack for allowing ideas like tax planning strategies to be patented. It basically reversed a 1998 decision in the State Street Bank case that had opened the door to business method patents. Under the new rule, a business method patent is available only if it is (1) tied to a particular machine or apparatus, or (2) transforms a particular article into a different state or thing. Thus, a purely procedural or mental business method cannot be patented now.

These three cases, taken together, will take a lot of heat away from the legislative effort to reform patent law, led by those who saw junk patents on business methods, a patents of small, mildly innovative elements of a complex high tech device discovered independently, as a threat to innovation.

As indicated by the amicus briefs in the Bliski case, the leading proponents of big business are divided on the issue, even within particular industries. Legislators are rarely able to take such decisive action in an area usually delegated to specialists, in the face of well financed lobbies on both sides of an issue. Legislators have even less incentive to do so now that the courts have changed their course and artfully addressed public concerns about patent law using the existing statutes.

Off stage, so to speak, in the Patent and Trademark Office, improved training and increased resources devoted to the examination of patents, funded in part with increased patent application fees, has also improved the rigor with which weak patents are weeded out in advance.

The new case law also discourages "counter-revolution" because the reforms wraught by these cases will be implemented slowly. Patents last a couple of decades once issued, and the most liberal interpretations of patent law have been in place for only a decade, so patents issued under the old law have many years left to run on them. Barring a major administrative effort, few patents which were issued under the old law, but are doubtful under the new law, will be revoked after they have been issued.

A recently enacted "pro-IP" law (see here and here) primarily concerned itself with remedies in copyright cases and "orphan copyright" situations where copyright owners cannot be located. But, it could indirectly impact IP law by creating an "Intellectual property czar" in the White House office. However, there is little indication that a President Obama will appoint someone to this post who will upset the apple cart that the U.S. Supreme Court and U.S. Court of Appeals for the Federal Circuit have carefully put in place in these three cases.

Existing patent holders have an incentive to let sleeping dogs lie. An unrevoked patent has considerable legal value because it is entitled to presumptive validity in litigation. But, the new law will still discourage holders of dubious patents from enforcing them, because the patentability and obviousness defenses that can be asserted in litigation will be much more likely to prevail, and because it will be harder for plaintiffs to obtain injunctions if they prevail, which can richly reward a patent law plaintiff (usually a "patent troll" assignee of the true inventor with no active trade or business) with a far larger share of the profits than would have been obtained if negotiations took place before the invention had shown economic success.

Economists who are sometimes oblivious of these legal developments may bemoan an apparent decline in American innovation as demonstrated by a reduced number of patents issuing in the wake of these decisions. But, in fact, by reducing uncertainty, patent law better protects innovators who can never know for sure if their inventions and ideas are non-infringing, because it is impossible to adequately index ideas that patents embody.

The consensus heartland of patent law, like patents on genuinely new drugs and inventions, remains largely unaffected by these cases. But, the nebulous gray areas of patent law, which so distress businesses in the high tech area and civil liberties proponents (the ACLU filed one of the amicus briefs in the Bliski case in favor of the side that ultimately won), can rest easier now.

With the patent law problems that existing at the end of 2005 largely solved, it is now time to examine the more familiar, but also more difficult question of how to prevent copyright laws from creating innovation gridlock in our economy. The greater detail found in the statutory and intentional treaty framework of copyright law, the greater number of players who understand it, and the greater number of forums in which it plays out all combine to make this a thornier problem to address.

Business Methods Patents Limited

In the biggest business method patent case since State Street Bank, the U.S. Court of Appeals for the Federal Circuit, sitting en banc, has narrowed the circumstances when a business method patent may be issued in the case In re Bliski.

In a nutshell, the new test requires a greater connection to some sort of machine for a business method to be eligible for a patent, rather than a merely human implemented idea. Specifically, in order to be eligible for protection, a claimed process must be (1) tied to a particular machine or apparatus, or (2) transforms a particular article into a different state or thing. If it does neither it is an unpatentable mental process.

The full 132 page decision can be found here. A request for U.S. Supreme Court review is almost certain, although a grant of that review is never certain.

The case represents a major victory for "weak IP" proponents who argue that excessively broad intellectual property rights stifle innovation. This concern is particularly acute in patent law because independently developed ideas are excluded from the derivative works protections of copyright, but not from the protections of patent law. This decision also likely deals a major blow to "tax law patents" which have been extremely controversial in their own right, apart from the larger business method patent controversy.

Federal Circuit In Denial

The Chief Judge of the Federal Circuit is oblivious to the serious problems with the current patent law system in the United States.

Why Screen Patents?

I am usually among the first to grump about patent and trademark officers failing to be sufficiently careful in screening dubious patents and trademarks before granting them, but maybe I have the problem all wrong.

In many fields of property law, claimants to property rights make public filings to claim their rights which are not reviewed on the merits by the government to determine if they are valid in advance of litigation. This system is used for title to real estate in non-Torren's title jurisdictions (among common law countries almost everywhere in the U.S., but rare in the U.K. and Australia), copyright law, state law trademarks, oil and gas rights determination, and priority of security interests in personal property.

Federal trademarks and patents are exceptions to this pattern. With these kinds of intellectual property, a government official at the Patent and Trademark office pre-screens the application for validity, and in exchange, at some point, the applicant gets a presumption of validity in later litigation.

The trouble is that the number of applications is increasingly outpacing the ability of the government to provide meaningful review, and some believe that the problem runs deeper than a mere lack of staff. One alternative would be to shift patent law to the real estate recording system or something similar.

How would it work?

Rather than determining the merits of a patent application in advance, one would simply file an application to provide definitive proof of time of application and its contents. Presumptions of validity would be eliminated and the merits would be decided only in litigated cases.

Instead of relying on patent examiners, big companies with potentially very valueable patents upon which they needed to reply would turn to opinion letters from private patent lawyers, in much the same way that commercial real estate companies rely upon title insurance companies, and oil and gas firms obtain elaborate title opinions from oil and gas lawyers before drilling.

Little guy inventors could file and hope, paying only to have an application drawn up, and not invest the money in the prior art/obviousness due diligence until an investor approached the little guy inventor and financed the relevant validity opinion.

Private lawyers exposing themselves to liability in a validity opinion would likely be more cautious about doing so than patent officers who have immunity from liability if the overlook prior art or obviousness or some other flaw, giving them an incentive to rubber stamp applications if they are overburdened.

Indeed, if one wanted something closer to the current system, one could allow the presumptions of an existing PTO screened patent to apply in cases where a bonded and insured patent bar member has filed a validity opinion upon which that bar member is exposed to liability.

Can you patent that? Should you?

General John T. Thompson invented that eponymous .45 caliber submachine gun, first produced in 1921. Now, Transformational Defense Industries Inc. is making a splash in military procurement circles with a .45 caliber submachine gun.

It's pitch is that "the recoil is mitigated by diverting the spent gas from a fired round down and away from the gun's firing line. This 're-vectoring' also helps reduce the severe muzzle climb that comes with such high-caliber, high rate-of-fire weapons, helping shooters keep the rounds on target."

Presumably, they are, of course, seeking a patent on their product. There really isn't anything extraordinary about this, indeed, this is really about as ordinary as it comes in patent law, which is notable because it illustrates something about the nature of the beast.

Obviously, TDI can't get a patent on the .45 submachine gun idea. Indeed, it isn't as if recoil reduction is a new concept either. There are numerous U.S. patents, mostly spent and now in the public domain, that attempt to solve the problem.

This also doesn't involve any signficant recent advances in science or chemistry. The physics have largely been in place since Isaac Newton (indeed, one of the important weapons designers of historical submachine guns was named after Isaac Newton). Benoît Paul Émile Clapeyron came up with the ideal gas law in 1834, which is an imperfect, but quite servicable approximation of the behavior of the kinds of gases involved in this system. The ammunition itself isn't that different in basic chemistry from the one used in the Colt .45 pistol in 1911.

I'm sure experts in the history of guns could pin down the dates might tightly than I have, but suffice it to say that the TDI weapon does not rely on quantum mechanics, general relativity, superconductors, or anything so exotic. Probably the most advanced scientific advances it relies upon are apparently plastic parts and improved metallurgy methods that produce better quality materials.

This isn't to say that there isn't room for new invention in the world of relatively low technology items. Shaped skis have had immense impact on that field of endeavor, despite the fact that it would have been possible to make skis utilizing the concept a couple of centuries ago.

But, in every low technology invention, "non-obviousness" is a serious hurdle, because every great invention seems obvious once you have mastered it. Distinguishing this idea from prior art is also not easy. There is a lot of prior art to sift through, and it is entirely possible that some terribly bright person with no business sense invented the idea decades ago, but that poor promotion efforts kept anyone from noticing this fact until it was buried deep in the archives of the patent and trademark office. Now that the idea has been splashed all over the industry, there will be significant rewards for anyone who can defeat the patent by finding a dusty old, now public domain patent, or ancient magazine article that discusses the concept, even if it was the concept was never mass produced.

Also, reliance on any patent for your business profits is a term limited proposition. A patent lasts twenty years from the time that the application is filed (previously 17 years from issuance, although the details are complex). This is not a long time in the world of military and law enforcement procurement. It could easily take a decade from the filing of a patent application before the first large purchase of the weapon is made, if it is indeed any good, and a public patent filing, combined with a purchase of just one copy of the product would make imitation child's play. Also, it can take years to shut down an alleged infringer in litigation, and any litigation can be expensive, even if you win. If an alleged infringer can make a non-frivilous, but ultimately losing argument, you will be in litigation until the bitter end.

These aren't the only challenges involved. Government regulatory restrictions on automatic weapons leave the initial design with a very limited potential pool of purchasers. Efforts to civilianize the weapon will likely lead to efforts to change the law to prohibit that effort. Law enforcement does not have a dire need for a .45 caliber submarine gun with less recoil. A few SWAT teams might be interested, but law enforcement tends to be more interested in pistols and less lethal weapons. Most police and sheriff's deputies do fine with a small sidearm and a shotgun or conventional rifle in the squad car. The core markets for civilian guns sales are for handguns for self-defense and for hunting weapons -- this is neither.

To make military sales the company has to convince buyers that they need this rather than heavier weapons (such as rocket propelled grenade launchers), rather than better established military assault rifles with a different caliber ammunition, and rather than weapons like existing carbines. Even if this does fill a niche, someone marketing an idea like this has to consider how much of a mark up the well established market for small arms will tolerate.

The designers face strict liablity in tort if a defect in the product design or manufacturing kills or injures people using the weapon as intended (as opposed to intended targets), a risk that must be insured against.

In short, even if the idea is solid, making it a viable business proposition is not easy.

SCOTUS Reins In Patent Law

The U.S. Supreme Court made two important rulings on patent law today.

In Microsoft Corp. v. AT&T (05-1056) it held 7-1 that U.S. patent law doesn't apply to software copied abroad and not repatriated.

Of broader importantance was the court's unanimous decision in KSR International v. Teleflex (04-1350), where it broadened the definition of "obviousness" for patent law purposes beyond the narrow test previously applied by the U.S. Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over most patent law cases.

The SCOTUS analysis in KSR holds that patents must be reviewed to see if the proposed solution is obvious to solve any problem, not just the problem identified in the patent. It holds that "prior art" includes not just prior efforts at solving the problem identified in the patent, but also prior efforts to solve similar problems in other fields. And, finally, it ruled than when there are only so many ways to solve a problem which a skilled person in the field might have considered, that all of those possibilities are obvious, because that solution would have been "obvious to try" for a skilled person in the field, even though a skill person in the field would not have known just which solution would work best until a little experimentation was conducted.

It will be hard to tell precisely how this new standard for obviousness plays out in practice, but given that patent law is an area of law dominated by a small number of specialists who work together under the supervision, for the most part, of a single court and a single government agency, the effect could be swift and dramatic. We could see the number of patents denied on obviousness grounds surge -- greatly increasing the size of the public domain of ideas.

Of course, the news is not good for many participants in the system, so it may be met with resistance, something that drove the Federal Circuit to establish precedents narrower than the relevant U.S. Supreme Court precedents in the first place. For patent examiners, it means that while it is easier to dispose of a patent, that the relevant prior art which must be examined is much more expansive. For patent applicants (who represent the bulk of the people represented by members of the patent bar) it will mean more work on the part of their lawyers to establish in a much broader area of inquiry that there is no prior art which makes the invention obvious, and no lawyer for a patent applicant wants to have to tell a client that their invention is too obvious to be protected by a patent. For judges in patent cases, it means granting fewer motions for summary judgment, which means a larger trial docket.

But, continued efforts by lawyers for inventors fighting claims of patent infringement, a part of the patent world growing dramatically in clout in recent years, may have enough clout to really realize the implications of KSR. For them, this case is a huge litigation edge, and it flows from first principles that a man on the street should be able to understand. Why should a guy who comes up with an obvious idea (and more and more patents seem obvious these days, at least in hindsight), be able to prevent other people from using it?

Patent Law Broken

Everybody but pharma thinks patent law protection for intellectual property is too strong and discouraged innovation.

Business Method Patents

The stereotypical patent is "the better mousetrap", a discrete, narrowly described physical invention. The strongest proponent of strong patent laws today, the pharmacutical industry, with its chemical formulas and recipies for particular pills that heal people, aren't far removed from that model.

In EBay, Inc. v. Mercexchange, a business method patent case aimed at Internet retailer E-Bay, arguably the most important U.S. Supreme Court patent case in decades, Justice Kennedy, in a concurring opinion joined by three of the Court's liberal justices, took aim at one of this types of patents in particular.

Mercexchange's patent was "for an electronic market designed to facilitate the sale of goods between private individuals by establishing a central authority to promote trust among the participants."

Kennedy notes:

[I]njunctive relief may have different consequences for the burgeoning number of patents over business methods, which were not of much economic or legal significance in earlier times. The potential vagueness and suspect validity of some of these patents may affect the calculus under the four-factor test.

The hostility to business method patents comes largely from first principals of patent law itself. While business method patents are expressly permitted by patent law, they may only be awarded when, as set forth below by the U.S. Patent and Trademark office it is not obvious based on prior art.

If the invention has been described in a printed publication anywhere in the world, or if it was known or used by others in this country before the date that the applicant made his/her invention, a patent cannot be obtained. If the invention has been described in a printed publication anywhere, or has been in public use or on sale in this country more than one year before the date on which an application for patent is filed in this country, a patent cannot be obtained. . . .

Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention.

The basic criticism of most business patents is that they are, in fact, obvious extensions of ideas already published by people having ordinary skill in the area of technology related to the invention.

For example, in the case of Mercexchange patent, central authorities designed to promote trust among the participants have existed for centuries in the form of village markets, auction houses, stock exchanges and commodity exchanges. Some of these central authorities have permitted some for of electronic participation for decades. For example, people have been making stock trades via telegraph since the 19th century, and the NASDAQ has been a purely electronic auction market facilitating trades between private individuals for decades. The argument that expanding these kinds of markets from physical in person settings to electronic ones, or from stocks to physical goods, is not obvious is a serious stretch.

One suspects that a failure to judge obviousness well flows from the fact that patent examiners have historically been engineers by training, rather than businessmen. They don't have the right kind of resources, for example, to look for published prior art in the area of business methods. A simple pressure to process applications is also a factor. A patent officer must find prior art in less than a week of research. This is a searching review compared to most government applications, but also far less than an interested party facing litigation would conduct.

Mechexchange should never have been granted the patent it is suing under, in my opinion, and this patent is similar to a great many business method patents on the books. The fact that such a patent survived both the Patent and Trademark Office, and the courts, is stunning, until you see some of the other patents which have been granted such as Patent 6,257,248, which involved the business method of cutting hair using a scissors in each hand, and 5,806,063 which involves solving the Y2K problem by counting from years other than 1 AD for processing purposes (a method in use for more than 15 years when obtained). Part of what is troubling about the EBay v. Mercexchange case is that the determination on the merits which gave rise to the remedy seems wrong.

There is a widespread feeling that patent granting standards have been applied too loosely, not just in business method cases, but in all cases.

The U.S. Patent Code defines two relevant standards, "novelty" and "nonobviousness," but the courts have applied these standards much more loosely than is required by the statute. For example, novelty is the standard that prohibits a patent if a description of the invention has been previously published. Prior publication, however, will not bar issuance of a patent unless all the features of the invention have been disclosed in a single prior publication. Therefore the extension of a well-known and published technique to a new situation may well be "novel," because the application of the technique to the particular situation had not been described in a single prior article. It may also be "nonobvious" for patent law purposes, even though a scientist might reasonably think of trying the technique. This is because the standard for nonobviousness in such a situation is whether the approach offered a "reasonable expectation of success".

The courts could reinterpret such doctrines more strictly, for example, by raising the standard of nonobviousness in this context to reject a patent when a scientist would seriously consider a particular approach, and to grant the patent only when the approach seemed quite unlikely to work and still proved successful. Such changes would decrease the number of patents, while remaining consistent with the statute and rewarding more significant invention.

Also of concern are that "the patenting of very fundamental concepts" which no specific useful application has been permitted, shutting off research in broad areas for the duration of the patent, and that "[c]urrent law, however, creates a statutory presumption of validity that strongly favors the holder of even an invalid patent.", which means that often interested parties are not in a position to challenge a patent's validity on a level playing field, since they can't afford to actively monitor every patent grant to determine if a potentially invalid one that could impact them will be granted. The presumption of validity is codified at 35 United States Code Section 282.

Reform proponents are on track when they state:

Those likely to be harmed in the future by a patent may not realize which of the patents being issued are likely to be significant to them, and they may not be able to afford to contest all of them. It would be wise to go further to weaken the presumption of validity and to make it easier to bring litigation to have a patent declared invalid, presumably with some device to protect a patent holder from repeated litigation.

It is also not entirely clear what issues in patent litigation are for the jury to decide and which are for the judge.

The problem a bad patent grants isn't specific to business methods, but the problem is particularly acute in the business methods context because the number of people who conduct a business which might end up using a business method is often far greater than in the case of a typical invention patent, which impacts only people in one specific part of the manufacturing industry -- for example, a tractor attachment patent impacts only the handful of companies in the United States which build tractor attachments, while an accouting method patent potentially impacts almost every U.S. patent and covers issues well outside the expertise of your typically engineer.

A Patent and Trademark Office white paper notes that until the case State Street Bank and Trust Co., Inc. v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998), which held that mathematical algorithms with a specific application could be patented, was decided, business method patents were far less common. According to one review of the matter: "Under a broad definition of software/business methods, the USPTO is now granting 10 to 12 thousand patents per year, as opposed to fewer than a thousand before 1985."

Patent examiners have finally started to wake up to this issue. In 2001, 45% of business method patent applications were granted. In 2004, the grant percentage had dropped to 11%. The changes have also contributed to a huge backlog of patent applications. This is both good and troubling. On one hand, in the face of criticism, the PTO is clearly being more careful in the business patent area. On the other, it suggests that perhaps three out of four business method patents currently in force shouldn't have been granted in the first place.

Once a patent is issued, it gives the holder bargaining power, even if it is weak, and forces someone accused of infringing it to gamble and spend a great deal of money to defend themselves, if they risk fighting it. This is a serious burden to impose on someone when the majority of the people with a right to bring claims have only dubious rights.

There are also real public policy reasons to be concerned about business method patents. For example, suppose that someone develops a method to reasonably accomodate blind workers in the accounting industry. And, suppose further that this is patented, because it is not an obvious solution and no one has ever thought about it before. Then, suppose that the ADA is held to require this type of accomodation. Must every accounting firm pay the patent holders simply to comply with requirements imposed upon them by non-patent law, whenever it hires, as it is required to, a qualified blind applicant?

Punting on Patent Law

Few unanimous U.S. Supreme Court decisions are as unilluminating as EBay, Inc. v. Mercexchange. Justice Thomas, writing for the unanimous court holds that patent injunctions are governed by the traditional four factor test that governs injunctions generally, while providing no real interpretive guidance. The District Court erred, he said, by presuming that one class of infringers or patent holders were favored, the U.S. Court of Appeals made the same error in the other direction. Look at it case by case, Thomas urges the lower courts.

But, this unanimous opinion is accompanied by two concurring opinions with very different views on how to apply the Thomas test. Three urge lower courts to defer to a history in which patent injunctions were almost always granted against infringers. Four urge lower courts to recognize that modern patent fights may not look much like those in the past. Justices Alito and Thomas abstain from this debate.

An abuse of discretion standard of review may insulate the high court from having to consider future cases if lower court judges go through hte motions of considering facts on a case by case basis.

If it weren't for the fact the the U.S. Court of Appeals for the Federal Circuit had a monopoly on such cases, this one would be a circuit split in the making on day one.

In the short run, it is a victory for EBay. The Federal Circuit had left it with a certain loss, but now they can make their case again. In the longer run, the decision may help patent infringers only a little, as the strongly pro-patent holder Federal Circuit that originally created a categorical rule in favor of patent holders is likely to favor those Justices who stated in their concurrence that they feel that generally patent holders will end up winning injunctions anyway.

The Blackberry Patent Case

I am not a patent lawyer. I know how long a patent lasts and some other details typical of many non-patent lawyers and lay inventors, but I'm not expert. But, I still say that when the law permits an injunction to issue based upon patents that are very likely invalid (in one case, finally so found by the PTO and in four other cases, preliminarily so found), as is the case in the Blackberry case, that something is deeply wrong with the law.

I also think that the maker of Blackberry should be able to seek restitution of amounts it has paid, if any, to the firm that won patent claims against it, when those patents are invalidated.

Finality can go too far. It is unconscionable to have laws that keep the innocent in prison, and it is unconscionable to allow the results of a civil action that found a violation of a patent to stand, if that patent is indeed, found to be invalid.