If you read my blog on the History of Software Patents, you’ll see that the pendulum has swung from “anything under the sun made by man” being eligible for patent protection, according to the Supreme Court in Diamond v Chakrabarty in 1980 to the current two step Alice v CLS analysis where even a device with two image sensors, two lenses, analog-to-digital converting circuitry, an image memory, and a digital image processor was considered to be too abstract to be eligible for patent protection in Yu v Apple.

It has become much harder to patent software, even though software inventions are one of the most common types of inventions.  A large percentage of patent applications that are filed are for software.  Many AI and…

The America Invents Act (AIA) of 2011 fundamentally altered the U.S. patent landscape, introducing new mechanisms for challenging patent validity outside of traditional federal court litigation. While proponents argued these reforms would improve patent quality and reduce frivolous litigation, critics contend the AIA has created serious constitutional concerns and undermined the innovation economy.

Background: The Patent System Before and After the AIA

Historical Foundation

For over two centuries, the U.S. patent system operated on well-established principles. Patents were treated as presumptively valid property rights that could only be invalidated through Article III federal courts, where defendants challenging patent validity faced a “clear and convincing evidence” standard. This system provided inventors with relatively stable intellectual property rights…

You went through the complicated, expensive process to obtain a patent.  A big tech company copied you.  You’d think you would be made whole if someone infringes your patent.  You may be mistaken.

When I first started practicing patent law, I was taught to show and describe the largest system in which the invention could potentially be employed.  That was because this allowed for the possibility of obtaining damages based on the value of the entire system.  So if your client brought you an improved carburetor, for example, you would show and describe an entire car in your patent application.

Apportionment of Patent Damages

According to the patent statutes, damages for infringement shall be “adequate to compensate for the infringement, but in no event less than a reasonable royalty for…

Utility patents used to have much more value in the past than they do now.  There was a time when patents were a useful tool for all companies, big and small.  Due to a variety of decisions and lobbying by Big Tech, patents are now primarily a tool for big businesses.  I will lay out my case for why patents are no longer as good as they used to be in this and coming articles.

The Value of Patents Has Declined

In a case called Uniloc USA, Inc. v Microsoft Corp., the pendulum swung against the patent holder.  The Federal Circuit, our court of appeals for patent cases, held that royalties should be based not on the entire product but on the smallest salable patent practicing unit.  After the…

Patenting a product is one of the most important steps you can take to protect your intellectual property and build long-term value around your invention. As a patent attorney, I’ve worked with everyone from garage inventors to established startups, and I’ve seen how getting a patent can make or break a business. I’ve also seen the costly messes that come from skipping steps or filing a provisional or regular patent application hastily without understanding the process.

Let’s clear up a common myth right out of the gate: mailing your idea to yourself, signing an NDA, or describing your product in a blog post does not protect your patent rights. A patent is the only formal legal protection that prevents others from making, using, or selling your invention without…