About Raymond Van Dyke

Technology and intellectual property attorney specializing in patents, licensing, trademarks and copyright issues.

A Paean to Pi

Today is National and World Pi Day because the numbers of the day (3-14) match the first three digits for pi or π, the Greek letter, 3.1415926535897… Although most people think that π is relegated to just geometry and trigonometry, the number pervades all of mathematics and the natural sciences, even statistics. This article was published last year, but pi day has returned!

Several thousand years ago the Egyptians, the Babylonians, the Chinese and the Ancient Greeks tried to make sense of the world through mathematics, an abstract way to envision and explain the operations of Nature, not as the activities of the gods. Over time geometry developed, which could explain much of the world. For example, Euclid and his various axioms were employed to describe much of the natural world. However, when it came to circles and non-linear lines, there remained a mystery among all the Ancients, which was π.
It had long been recognized (and still taught to reluctant students in high school geometry) that the ratio of the circumference of any circle to its diameter is a constant. The Ancients knew this, but the value of that constant eluded them. They realized, however, that there were approximations, e.g., the fractions 25/8, 22/7, 256/81, etc., that were close, and these fractions were employed for centuries as substitutes for pi.

Over two thousand years ago Archimedes carried this approximation technique to its logical limit, using techniques akin to calculus infinities approaches, and was able to obtain very close estimates of π to whatever tolerance was needed, e.g., through circumscribing and inscribing large numbers of polygons, e.g., an algorithm employing up to 96 such polygons for an accuracy between 3.1408 and 3.14285, about 99.9% accuracy. But, around the year 480 A.D., Chinese mathematician Zu Chongzhi used this approach with 12,288 polygons, and created a far more accurate fractional approximation, 355/113, roughly 99.99999% accurate, which was the best approximation for π for the next 800 years.

As a side note, through recent discoveries, Archimedes is also credited with understanding aspects of calculus long before Newton and Leibnitz, who developed differential and integral calculus just over three hundred years ago. Had the Roman soldier not killed Archimedes in the siege of Syracuse, our world may have been very different. But, I digress.

Clearly, these fractional representations of π were all approximations and not a pure answer, which galled the Ancients at their inability to solve the conundrum. Indeed, the purity in mathematics was at the heart of Euclidian geometry’s goals of solving problems. For example, in their effort to solve the π enigma, the Greeks were famous in their efforts to “square the circle,” i.e., geometrically constructing a square having the same area as a given circle, and asking whether Euclid’s axioms posit the existence of such a number. However, the Greeks and many others later could not do it, which had profound implications to Plato regarding the usefulness of Euclid’s theorems or even mathematics to actually describe the real world. In short, the quest was impossible. But why?

With Euclid and the pre-Socratics trying to explain the world in physical ways, e.g., Democritus postulating atoms in a very logical way 2,500 years ago, it is sad that the mystery of π seems to have derailed the very influential thinkers Socrates and Plato to fully trust mathematics. Accordingly, Plato looked to another realm to describe the world: using his forms or abstractions. For example, the concepts of a circle and π were perfect, idealized forms, but every attempt to depict them in the real world would, by definition, be imperfect. This philosophical view held sway until the Renaissance started new ways of thinking.

But, back to π. We now know that pi is both Irrational and Transcendental. An irrational number is defined as a number that is not a ratio of two whole numbers, i.e., fractions. This irrationality of pi is strongly suggested by Archimedes’ and others’ succession of better and better fractional approximations, without a final answer. Also, with computerization it has been found that the digits of pi have no pattern, and for several trillion digits pass the mathematical test of normality, i.e., all of the digits appear equally often in the series. The irrational nature of pi was formally proven in 1761.

A transcendent number is defined as a number that is not the root of any non-zero polynomial with rational coefficients, which is a modern way of saying you cannot square the circle. The transcendence of π was proven in 1882. The staggering notion that the digits go on and on, without repeating or in any pattern to infinity, was (and remains) hard to grasp, the immensity of which was something well understood to Aristotle and others. Over a hundred years ago, however, mathematician George Cantor tackled the mathematical problem of infinity and actually demonstrated the nuances between infinities. π is also computed by various techniques, e.g., equations and trigonometric series, that have terms that go to infinity.

The use of the Greek letter π in this context dates from about three hundred years ago when the great mathematician Leonhard Euler started popularizing it. Mathematician William Jones in 1706 is accredited with being the first to symbolize the circle circumference-to-diameter ratio as π, which is also attributed to the Greek word for perimeter. Prior to computers, pi calculation was a laborious and very error-prone endeavor. With the advent of computing, the mere six or seven hundred digit manual calculations not too many decades ago have jumped to many trillions of digits.

Despite all of the mathematical rigor of the modern era, π remains a mystery, a constant that in a way is inconstant. Of course, there are many other such enigmatic irrational and transcendent numbers out there, e.g., e (2.71828182845…)(which I have also written about), but π is the oldest of these cosmic constants for us humans. On a related note, this is the 51st anniversary of Stanley Kubrik’s 2001: A Space Odyssey, an inscrutable movie that still contains innumerable mysteries. It is also the 20th anniversary of π, the movie, a psychological thriller about the irrationality of π and the human mind. In Star Trek, Mr. Spock crashed a hostile computer making it calculate pi precisely. π also pops up once and a while in TV shows, such as the Simpsons.

This magical number is everywhere, and is part of our lives – even if you hated high school geometry and math. Indeed, we are all still trying to understand the meanings of π.

Raymond Van Dyke is an intellectual property/patent attorney, educator and a science and technology enthusiast.  He has a B.S. in mathematics/computer science and was admitted to Pi Mu Epsilon, an honorary mathematics society, has an M.S. in Computer Science, and a J.D. from the University of North Carolina at Chapel Hill. He is the Chair of several organizations and teaches IP, technology law, the history of technology and IP.  His website is: http://www.rayvandyke.com.

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An Ode to e

Mathematics is a fascinating subject to some people, but a horror to most. Formulas and rules abound to govern purely abstract relationships that appear alien to ordinary life. Yet, mathematical laws govern our entire world, and the Universe. Physicist Max Tegmark believes that the Universe is itself entirely mathematics, i.e., we are all elaborate formulas in some metaverse.

Embedded within the mathematical laws are inscrutable constants, such as pi and e, where e is the so-called base of the natural logarithm. e is roughly 2.718281828…. Although Pi (3.14159…) has an official day, 3-14, or March 14, e has yet to acquire this honor. Last year, I wrote in honor of World Pi Day on this site and also below.  This year, I propose making 2-7, or February 7, National or World e Day.

The Wonders of e

The constant e is found primarily in mathematical theories and physics computations, but it also turns up in finance. Just like the mysterious pi, the constant e has a lot of stories and mysteries of its own and is also related to ordinary life. For example, e is found in the study of compound interest in banking, as well as probability theory. But e is of considerable value in the entire field of calculus, where the use of e reduces computational complexities.  Another explanation of e:

Before calculators and computers, e and natural logarithms were a mainstay in slide rules, which were graduated scales of numbers along two slidably-arranged pieces of wood. Multiplication and division were easy using a slide rule, simply lining up numbers on the appropriate scales. But these devices included considerably more functionality with the usage of logarithmic techniques, using the base e, and exploiting the properties of these functions to simplify complex calculations using log scales.

The Renaissance was a time of great intellectual exploration, and science required precise measurements and instruments for calculations. Just after Galileo, John Napier invented logarithms, which in essence is a simplified mathematical reformulation of numbers to make them easier to calculate. Such concepts were, however, generally known by the Babylonians (2000 BC) and Indians (800 AD).

To the Moon

Using logarithms simplifies the math, e.g., the process of multiplication is simplified to addition, and large or small numbers could be calculated by first simplifying the number, e.g., 4,567 could be reduced to finding the log of .4567 (from a precomputed table) and adding the exponent value (10,000) afterward. During the Industrial Revolution, slide rule design and usage went into overdrive with the rise of science, technology and engineering. We went to the Moon using slide rules and e.

The constant e, actually hinted at by Napier and others, was first calculated by Jacob Bernouli, one of the famous Bernouli Brothers of mathematics, in 1683. Gottfried Leibnitz first used the letter b for the constant in 1690, but Leonhard Euler coined the letter e for this constant (for Euler?) in 1727 or so, and that coinage later took.

A Complicated, but Constant Cousin

Just as with pi, e is both an irrational number, i.e., it is not a ratio of integers, and a transcendental number, i.e., not a root of any non-zero polynomial with rational coefficients, which means that e’s digits, like pi’s, continue unrepeating to infinity. The constant e is also prevalent in mathematical formulas that involve a series going to infinity, e.g., the Taylor series in calculus and many others.

e does, however, crop up in unexpected places. For example, Google’s IPO valuation was for \$2,718,281,828, or e billion dollars. More obscurely, famous computer scientist Donald Knuth labeled the versions of his Metafont program, as 2, 2.7, 2.71, 2.718, and so on.  See here for a Simpsons take on transcendentals pi and e:

Unlike pi, which is much better known, and which is even relatable to many, e is a more complicated and more distant constant cousin. Still, this marvelous constant is of immense value to science and society at large and should be commemorated accordingly. Hence, I proclaim February 7 as World, National, or International e Day.

Raymond Van Dyke is an IP consultant, strategist and educator; he has an undergraduate degree in mathematics, and was on the math team in high school.

Symposium on Patenting in 2019

As Chair of the Greater Washington, DC Chapter of the Licensing Executives Society (LES), I have been privileged to host many distinguished speakers over the years.  This month is no exception.

The state of patents is a big question.  After years of relentless attack from lobbyists and academia, the value of patents dropped significantly.  Corporations have developed a sue me attitude, and countless patents were considered worthless by the somewhat clueless Supreme Court (absent Scalia things have gotten worse).  The single biggest bright spot, however, is Trump’s appointment of Andre Iancu as the USPTO Director and his ongoing effort to rebuild both the Office and the patent system itself.  It is critical to restore faith and honor to the patent system, and Director Iancu is on this quest – as am I.

With the above in mind, LES is honored to have the new Deputy Director Laura Peter speak at our Symposia.  The roster also includes Bob Held, the current President of LES, Mark Lauroesch, Executive Director at the Intellectual Property Owners (IPO), Sanjay Prasad and Everado Ruiz, Palo Alto IP Strategists, Ken Porter, a Director at the University of Maryland, and me.

The event starts at 3 PM on January 23, 2019, with a reception following Deputy Director Peter’s presentation.  I will reprise my historical sweep of technology, patenting and famous inventors at 6 PM, followed by another reception.  I hope that you can make it.

The link to the event is: https://www.lesusacanada.org/events/EventDetails.aspx?id=1187185&group=160111

Ray

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The Categorical Imperative for Innovation and Patenting

The political theories of John Locke, Jean-Jacques Rousseau, Montesquieu and others greatly influenced our Founders in the creation of our nation, as well as our patent system. In particular, Locke’s political philosophy included the maxim that a person’s property or fruit of their labors should be protected by their government. James Madison, the father of the Constitution, and others inculcated this viewpoint of a patent system into the fabric of our nascent nation. Indeed, the only “Right” mentioned within the text of the Constitution is the right to secure protections under patent and copyright. The other Rights, i.e., Freedom of Religion, Security in One’s Home from Unreasonable Searches and Seizures, etc., are set forth in the attached Bill of Rights.

Despite the clear language of the Constitution, the Federalist Papers and other writings that the Lockean “natural rights” view governs, some academics try to decry this approach, and turn to other philosophies, such as John Stuart Mills’ Utilitarianism, to either bolster or undermine the usefulness of a patent system, usually undermine. Born thirty years after the creation of the United States (and nearly twenty years after the Constitution), Mill wrote extensively on individual liberty, freedom, logic and other issues, and is chiefly known for his principle of utilitarianism, the greatest good for the greatest number. His maxims are many, including “Originality is the one thing that unoriginal minds cannot feel the use of.”

But there was another philosopher, contemporaneous with the Founders, that bears notice, Immanuel Kant, who had a different take on moral and political philosophy, including the Categorical Imperative. Kant spent his life trying to distill the issues of morality into a logical framework. Just as the natural scientists of the Enlightenment were forming logical arguments concerning the physical world, e.g., physics, natural science and other disciplines, Kant tried to do the same with human morality: systematize it.

In his Categorical Imperative, Kant simplifies a moral argument position for an individual by asking a question: if you thought that your position or Statement would be Universal, i.e., applicable to all people, it would have the stance of a Categorical Imperative and thus you must do it. For example, a Statement that I should try to save a person that is drowning can be considered a Categorical Imperative since this would be a betterment of humanity.

However, the proposition or Statement that it should be ok for me to steal another’s car is not a betterment at all. Applying this as a universal law would lead to societal chaos and possible collapse since thievery would reign, and anarchy would result. Since the entire purpose of government is the protection of people (and their possessions), this Statement fails, and you are NOT compelled to act in that manner. This Statement does not rise to the level of a categorical Imperative.

Intellectual property has been attacked of late on various grounds, including being less than property, and thus not entitled to the protections of the Constitution, despite the evidence to the contrary. This attitude is most recently, and most troublingly, exemplified by the U.S. Supreme Court in Oil States, where the Court equated patent rights to taxicab medallion rights. Freeriding is also being touted, subverting copyright law. Information must be free is the mantra.

As we shall see, applying Kantian logic entails first acknowledging some basic principles; that the people have a right to express themselves, that that expression (the fruits of their labor) has value and is theirs (unless consent is given otherwise), and that government is obligated to protect people and their property. Thus, an inventor or creator has a right in their own creation, which cannot be taken from them without their consent.

So, employing this canon, a proposed Categorical Imperative (CI) is the following Statement: creators should be protected against the unlawful taking of their creation by others. Applying this Statement to everyone, i.e., does the Statement hold water if everyone does this, leads to a yes determination. Whether a child, a book or a prototype, creations of all sorts should be protected, and this CI stands. This result also dovetails with the purpose of government: to protect the people and their possessions by providing laws to that effect, whether for the protection of tangible or intangible things.

However, a contrary proposal can be postulated: everyone should be able to use the creations of another without charge. Can this Statement rise to the level of a CI? This proposal, upon analysis would also lead to chaos. Hollywood, for example, unable to protect their films, television shows or any content, would either be out of business or have robust encryption and other trade secret protections, which would seriously undermine content distribution and consumer enjoyment. Likewise, inventors, unable to license or sell their innovations or make any money to cover R&D, would not bother to invent or also resort to strong trade secret. Why even create? This approach thus undermines and greatly hinders the distribution of ideas in a free society, which is contrary to the paradigm of the U.S. patent and copyright systems, which promotes dissemination. By allowing freeriding, innovation and creativity would be thwarted (or at least not encouraged) and trade secret protection would become the mainstay for society with the heightened distrust.

Also, allowing the free taking of ideas, content and valuable data, i.e., the fruits of individual intellectual endeavor, would disrupt capitalism in a radical way. The resulting more secretive approach in support of the above free-riding Statement would be akin to a Communist environment where the State owned everything and the citizen owned nothing, i.e., the people “consented” to this.

It is, accordingly, manifestly clear that no reasonable and supportable Categorical Imperative can be made for the unwarranted theft of property, whether tangible or intangible, apart from legitimate exigencies.

On the positive front, there is a Categorical Imperative that creators should be encouraged to create, which is imminently reasonable and supportable. Likewise, the statement set forth in the Constitution that Congress should pass laws “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” is supportive, as a Categorical Imperative, for the many reasons elucidated two centuries ago by Madison and others, and endorsed by George Washington, Thomas Jefferson, and later by Abraham Lincoln. A Categorical Imperative, universality, however, may be a stretch outside of the United States since other cultures may not treasure the progress of science and the useful arts and freedoms that we Americans do. Nonetheless, it is certainly a supportable proposition in the United States, and even a Categorical Imperative that we must do it!

Turning to issues facing us today, despite the categorical imperative nature of an intellectual property system, some powerful naysayers object to intellectual property per se, but on more fundamental grounds, pecuniary. A large amount of the condemnation of the intellectual property laws over the last decades has been from the big tech companies that would like to use new innovations for their own profit at the expense of the individual inventor. Ignoring the small entrepreneur or inventor is even de rigueur, i.e., most tech companies now have a “sue me” approach to patent infringement, which means openly taking patented technology knowing that a patentee is not likely to have the means to bring a costly litigation. To further undermine small inventors, the big tech companies, at the behest of Congress, instigated onerous administrative proceedings at the Patent Office, where the odds were stacked against patentees, proceedings often called “death squads” due to the very high percentage of patent invalidations.

Indeed, these patent-hostile, monopolistic companies lavishly fund lobbyists to further influence Congress on their behalf to diminish patents, thereby undermining the patent system and the value of patents, and increasing their profit margins with the freeriding. With all of the denunciation of the Chinese for freeloading our IP, we should perhaps look within first to make America great again. To add insult to grave injury these same companies have also supported numerous Supreme Court challenges to further undermine the patent and copyright systems. The recent appointment of Andrei Iancu as the new Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trdemark Office is a harbinger of a possible turning point toward a more positive patent system.

As a result of all of the big tech efforts to destabilize the patent system, the engine of innovation has suffered. To further harm the patent system, the press labels all inventors de facto trolls and thus unworthy. This demonization of inventors by the press has been profound. Gone are the days of an inventor being celebrated for building a better mouse trap or developing a nifty app. Now, even the Wright Brothers and Edison have been brought low, equated to trolls and not respected American innovators.

Immanuel Kant’s dream of systematizing morality is, of course, imprecise, but the meaning is quite clear and analogous to another famous maxim: do unto others as they would do unto you. Kant’s Categorical Imperative and the Bible extort us to be better people and form a better society. If, however, you feel that innovation is trivial and content should be free, then a Categorical Imperative for freeriding may be sane for you, but it fails at the societal level, i.e., universal application would undercut society. It is also wrong to steal. In the balance, society wants new ideas, new stories, new ways of doing things, and newness itself. All of this takes effort and expense, along with ingenuity and creativity, which should be strongly encouraged and not punished.

A Kantian Categorical Imperative to encourage, support and defend the creations protected by intellectual property is manifest. We should not be swayed by the arguments of corporate monoliths desirous of their own wellbeing and not society’s. In connection with his categorical imperative, Kant also believed that we should all “always recognize that human individuals are ends, and do not use them as a means to your end.” In other words, we should value and respect each human being and their contribution to the world. By deliberately or wantonly stealing patented technology from individual inventors, big tech companies treat them as a means to the corporate end, diminishing and dehumanizing the inventor.

Our Founders well knew that human beings create, and that the stuff of that creation has value. The patent and copyright clause, embodied within the Constitution itself, recognizes this need to encourage, facilitate and support the creativity embodied in us all.

Article also published today on IpWatchdog.com website

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Vint Cerf: Internet Evangelist and Visionary

As a computer science major and having a Masters in Computer Science as well, I have had the privilege of meeting several famous people in this discipline.  At the University of North Carolina at Chapel Hill I had the honor of working with Dr. Frederick Brooks in getting my Masters, and while there met Ivan Sutherland and others.  I was on the Arpanet years ago while at UNC sending electronic messages, not yet called email, to classmates.  Those simple communications later went global with the creation of the Internet, an information superhighway.

The creators of the Internet are Robert Kahn and Vint Cerf, who wrote most of the code.  Drs. Kahn and Cerf developed the Transmission Control Protocol (TCP) that controlled the transmission of data packets among networks, which soon become the means of interconnecting all networks – the Internet, a truly transformative endeavor!

On Monday, July 16, 2018, in Washington, DC, I have the privilege of hosting Dr. Cerf at one of my events for the Licensing Executives Society, of which I am the Greater Washington, DC Chapter Chair.  The event is open to the public, and registration and information can be found at https://www.lesusacanada.org/events/EventDetails.aspx?id=1089056&group=160111   Please contact me (vandyke@acm.org) if you have difficulty getting the information or have questions.

Dr. Cerf, now Google’s Internet Evangelist, will speak on the importance of design in innovation, providing his experience with the Internet as an example to potential future new paradigm producers.  I hope to see you next Monday evening for this informative talk.

Raymond Van Dyke, Greater Washington, DC Chapter Chair, LES

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For many years, I have been freely linking with people around the world, some I know and some I just reached out to.  Likewise, I have received countless thousands of requests from other LinkedIn members, the majority of whom I do not know, and usually linked.  I had heard of LinkedIn members with over 50,000 or more connections, and thus did not limit my own efforts to interconnect with the world.  And then I hit a roadblock on that highway: the LinkedIn Limit.

Apparently, 30,000 is that limit.  This is a lot of connections, but I have been a member for a long time.  Thus, to the growing hundreds of people desirous of linking with me, I am not ignoring you.  LinkedIn wants me to cull among my interconnections, cutting off connections that are not useful or something.  I am mulling that over, wondering if I am being culled in a similar fashion since every few days someone drops off my own list – and the next person in the growing queue is a new connection.

Although there is joy in interconnecting itself, making “friends” with people you will never meet, LinkedIn forces us to focus on more practical things, more business, jobs or other such advantages.  With the rubber now meeting the road, and many good people now unable to connect to me, I must give up my whimsy, and now evaluate each person under a very different criteria.

In the meantime, please feel free to follow me.  In due course, when LinkedIn changes this policy (or I cull), I hope to connect with you.  Watch out for the speedbumps!

Quantum Mechanics and the U.S Patent System: Two Uncertainties

From Ancient thinkers to Isaac Newton to today, our classical understanding of the world around us includes various laws that objects in our Universe obey, such as Newton’s Law of Gravity. These physical laws were updated a century ago by Albert Einstein to include situations not adequately described by Newtonian Mechanics, e.g., travelling near the speed of light, resulting in the modern view of Space-Time.

Around the time of Einstein’s discoveries, however, experiments in subatomic physics presented considerable challenges to these classical views. The disparity of these observations with the “real” world ultimately resulted in an agreement among physicists on the interpretation of reality itself, the Copenhagen Interpretation, which was necessary to establish a common platform for physics and mathematics. Quantum Mechanics developed as a statistical model in this alternate reality, where laws were replaced by rather uncertain estimations.

Our patent system was also been built upon classical rules and understandings, e.g., earlier patent systems, and the thoughts of Rousseau, Locke and others who influenced our Founders in the creation of our patent system. For over 200 years our patent system has been operating within the paradigm or mindset that innovation should be encouraged by providing a personal incentive to benefit the innovator (in the short term) and Society as a whole (over the long term).

This reality, however, is now under question, i.e., the George Washington Interpretation that a patent system is good for the nation. As with Quantum Mechanics in physics, a new reality has been thrust upon us that the patent system is actually questionable, uncertain or even bad. This new view is the Troll Interpretation. Instead of American inventors creating a better mouse trap, bettering Society, they are now trolls, every one of them it seems. This new interpretation is a long way from the veneration accorded inventors, including great American innovators, such as Morse, Bell, Edison and others. Indeed, the press goes into overdrive denigrating famous inventors, such as the Wright Brothers, as trolls.

The U.S. Supreme Court, which for two centuries acknowledged the importance of patent rights, has also brought the George Washington Interpretation into doubt by undermining the entirety of the patent system in the recent Oil States case, where patents of innovations are now deemed mere tools of the government, and not the innovator’s private personal property. But this is just the latest in numerous decisions over the past decade or so where the Supreme Court has curtailed and belittled patent rights. All of their many negatively-postured opinions have denigrated the value of patents and investment in innovations relying upon patent rights. Indeed, the Supreme Court has directly created considerable uncertainty in a once fairly certain world of patent valuation.

In physics, there is an interesting experiment involving light passing through two narrow slits. Under classical physics, light, as a particle, should pass through and hit a detector on the other side in two places corresponding to the placement of the slits. But this is not the case. Instead, there is a continuum of values detected corresponding to light wave interference, i.e., the light, as a wave, actually goes through both slits and interacts with itself on the other side. One cannot predict with certainty where any given light ray will hit the detector. All one can do in this uncertain environment is to employ statistical techniques to guess.

Right now, the Supreme Court jurisprudence on many important patent issues is just as uncertain, creating further havoc with the George Washington Interpretation. Indeed, it is hard to decipher meaning from the diverse opinions of the Court as to how to proceed. Each new decision further disrupts the patent paradigm in unknown and uncertain ways, but overwhelmingly negative. The Court does not seem to understand the criticality of the issue and the crises so generated.

Modern innovation relies on funding, and one must demonstrate that one can deliver on a promise, e.g., investment requires some certainty to the investor or banker. In the past, the key assets were physical in nature, e.g., a factory lease and the latest printing press for a startup printing business – known values. Now, the assets are far less tangible, e.g., an app or a therapeutic kit, but far more valuable, and very much in need of patent protection. Yet, apart from Justices Gorsuch and Roberts, the Supreme Court appears unable to accord patents the proper status in this equation, creating further uncertainty in the marketplace, preventing many businesses from forming and thwarting innovation itself.

Also, if a valuable invention covered by a patent can be invalidated with ease, e.g., in one of the new and slanted-against-the-inventor USPTO proceedings, why invest in R&D that cannot be protected? This scenario affects critical technologies, such as new techniques and therapeutics to detect diseases. For example, the Cleveland Clinic has recently curtailed critical research in view of the lack of ways to protect these techniques with patents. Indeed, abuse of Section 101 of the Patent Act has reached a precarious level. The investment calculus is simple: if too uncertain a patent can be obtained, and if obtained, too uncertain regarding enforcement, then no funding. This fundamental principle of economics is apparently lost on the Justices.

In Congress, under intense lobbying, they passed the America Invents Act (AIA) in 2011 to increase the “certainty” in the patent system. Despite the warnings beforehand that this was not so, this lobbyist- and troll-inspired law has morphed into a miasma of confusions and uncertainties. Now, Congress is having hearings to establish what they did wrong, and asking fundamental questions. Why has our patent system, once number one in numerous rankings, fallen to 12th place? Why are foreign patent systems more conducive to critical innovations in software, AI, diagnostics and therapeutics, and our Patent Office and the courts deny these innovations the right to be patented? Why is trade secret protection, in lieu of patenting, become so huge? Why are we indulging in this national self-destruction?

The new USPTO Director Andrei Iancu is trying to fix this horrible situation, where we have skewed so far from the George Washington Interpretation into extreme uncertainty that threatens the nation. He wants to change the dialogue and stress the positives of patenting, the positive portrayal of our famous inventors, and turn back many of the bad measures of the AIA. With the Supreme Court Justices rejecting the Founders’ view of patents, Congress will have to now step up and bolster our patent system. Senator Coons and others in Congress recognize America’s innovation slide, the proper role of patents, the bad press regarding patents, and the need to create certainty in business dealings. As our economy heats up further, patents will be even more critical to secure the fruits of American ingenuity in a complicated and intense world market.

George Washington, Thomas Jefferson and many others, including Abraham Lincoln, recognized the extraordinary value of the U.S. patent system, and talked and wrote about its virtues. A few bad actors should not have derailed this critical engine of our economy, but they did, and now all patentees are labelled trolls. Thus, a new portrayal of patents is needed. It will take time to educate the press, reintroduce the positive advantages of the patent system, and stop the slide. We must, however, watch out for the truly bad actors here, some of the big tech lobbyists who still want to curtail patents (to curtail competition), which keeps the patent system under threat.

The uncertainties in physics should not be mirrored in our patent system. The reality of the Founders is not alien to us: hard work, and reward creativity and innovativeness. Modern inventors of new advances should not be harmed due to the perverted view of the patent system being foisted upon us. We need to reaffirm the George Washington Interpretation. Director Iancu has his work cut out for him: Make American Invention and Inventors Great Again!

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The U.S. Patent System: The Good, the Bad and the Ugly

There is a lot of reason for hope in the pro-patent community over the last several months. New USPTO Director Andrei Iancu has been saying all the right things, and the USPTO has already released helpful 101 guidance in light of Berkheimer. But there is a long way to go to get back to an equilibrium point, as we have been reminded recently by the Supreme Court’s decision in Oil States, and the U.S. Chamber’s report of the U.S. falling to 12th place in terms of patent protection worldwide. Sometimes it is darkest before the dawn, and that may be where we are now. Join us for a candid conversation about the Good, the Bad and the Ugly with prominent Intellectual Property Blogger Gene Quinn. What you need to know to navigate (and survive) the shifting winds of the U.S. patent system.
The talk is this Wednesday, May 30, 2018, starting at 4:30 PM with a networking event before and afterward.  For those in the Washington, DC area I hope that you can come to this informative meeting and social event. Here is a link to the event: https://www.lesusacanada.org/events/EventDetails.aspx?id=1110304&group=160111
If you have any questions, please feel free to contact me: vandyke@acm.org 202.378.3903.

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Speech on Intellectual Property for 2018 at the Annual Meeting of the Bar Association of Montgomery, County Maryland

Tomorrow I reprise my update on IP law at the Bar Association of Montgomery County, Maryland, which is the county adjacent Washington, DC. Lots to report, The Oil States patent case has introduced even more confusion into U.S. patent law. But the appointment and confirmation of the new Director of the USPTO, Andrei Iancu, offers some rays of hope. I also address recent events in copyright, trademark and trade secret. For those in the area, I hope that you can attend.

I am Chair of the IP Section. If you have any questions about IP or require assistance (I have both domestic and international clientele) please contact me.

http://www.rayvandyke.com vandyke@acm.org
My website is being updated so please excuse its primitiveness;)
Ray

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