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Good day and welcome to the Patenting Strategic Podcast, where we discuss all things

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at the intersection of business, technology and patents.

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This podcast is a monthly discussion amongst experts in the field of patenting.

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This for inventors, founders and IP professionals alike,

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established or aspiring. And let me tell you, it is so good

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to be back and officially kicking off our second season after taking a brief

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post holiday break. This is going to be an incredible follow up

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to our inaugural season. So many great topics in store for you,

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including upcoming deep dives into the patent Metaverse, compelling interviews

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with impactful up and coming inventors, and a tour of the costly

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misconceptions around patent ownership. But first,

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today our experts tackle software protection. As Silicon

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Valley engineer and investor Marc Andreessen famously said,

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Software is eating the world. It’s central to so much of today’s

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innovation, and the growth potential is off the charts,

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despite recent rate hikes rattling the market a bit.

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Microsoft, Apple, Google, Amazon, and Tesla these

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five companies, all with software at their core, are worth a quarter of

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the SP’s entire market cap. It’s possible that meta platforms,

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formerly known as Facebook, could soon be the 6th such

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company worth over $1 trillion. In our microcosm of Focus,

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these eye popping stats are no exception. The AIpowered

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market will grow to $180,000,000,000 by 2025. By the

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end of this year, the global edge computing market will reach 672 billion dollars and

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the global AR and VR market will exceed

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209,000,000,000. By 2030, there will be 50 billion IoT

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devices in use worldwide. That’s six devices each for

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every man, woman and child on this planet, and all of them are powered

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by software. The stakes are high, the value is soaring, and the importance

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of quality patenting has never been more strategically vital. In this

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month’s episode, Dr. Ashley Slote, President and director of Patent Strategy

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here at Aurora, leads a discussion along with our Allstar patent panel,

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digging into the social and legal issues surrounding software patents,

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strategies for how to protect software innovations, and a great overview

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of IP implementation concerns and strategies as they pertain to

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outsourcing code ownership, agile methodologies, and open source use.

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The group also concludes with an insightful brainstorming session around two

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problems that plague this space. The first is around a new patent type

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that would help overcome many of the current prosecution and court problems faced

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by software patents. The second, pulling from adjacent IP law,

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is a mechanism for small inventors to receive compensation for using their patents,

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similar to how music Copyright royalties are handled. Ashley is joined today by

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our always exceptional group of IP experts including David Cohen,

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principal at Cohen Sciences, Shelley Katarrier, patent strategist

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and search specialist at Aurora, Amy Fine, patent attorney at

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Vancouver and adjunct professor at BYU, Kristen Hansen, patent strategist

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and newest member of the Aurora family, David Jackroll,

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President of Jacquero Consulting, and Daniel Wright, partnership manager and

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patent strategist here at Aurora. All right, take it away, Ashley.

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The things I want to talk about with software is very briefly touched on the

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social legal issues because you all know what those are,

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but just more to kind of bring everybody with the second part

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of the presentation and then how to protect software innovations. I think we’re all

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pretty clear on what those options are. But again, just a brief touch on that.

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But then the bigger part that I want to talk about is implementation

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concerns of strategies. Some of these things were things that I work,

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I think cursory thoughts, but digging

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into them where you can kind of see some of the nitty gritty of it.

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And so I think that’s this last piece is kind of some of

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the more eye opening or interesting topics for

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conversation. So, of course, with software patents,

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I think some of the interesting dynamics are that

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socially they’re kind of sorted to camp some that fully believe

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that software should be patent protected. And there’s another group of

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individuals who think that software should be an open

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source. Basically, both want to promote access to software,

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but they basically believe that it should be done about two different ways. One is

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make it open source and anybody can build upon it.

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Easy peasy. The other one believe that you file

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patents and then you can still give access to people,

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but you still are protecting your base innovation.

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These groups want kind of the same thing, but they also

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want to go about it in two different ways. And then legally, obviously,

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there’s some issues around the Alice decision and that

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some of the complexities and uncertainty that that put into

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the patent system around software patenting. And then of course, all the case law from

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the court system, the Federal Circuit has only increased

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the ambiguity and then either T tab obviously adds additional ambiguity

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as well because handling things in a little bit different way, a little bit different

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perspective, and trying to make heads or tails of it. And really at the end

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of the day, we do have some broader overarching ideas.

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But still there are some cases out there where even some

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of the ones that I read, I look at some of the ones that are

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invalidated. I’m like, that’s ridiculous. And then you look at some of the other

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ones that were held up and you’re like, that’s ridiculous.

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So there’s still some weird stuff where I

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don’t feel there’s a good consensus between the courts about how that should all be

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handled anyways. Of course, we all do know is that

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there’s a lot of ineligibility happening in the software space.

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Lots of times are being found Invalid either in

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the Uscto or at the Pizza or Federal Circuit based on all levels.

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There’s some degree of, I would say, higher ineligibility

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than eligibility with software pens. I think it does beg the

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question of how to remedy that. I do have some thoughts, like I

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said at the end, to talk through. But of course. And then,

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as we all know, the main problem is that software

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does fall into one of the four categories.

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Process, machine, manufacturer comes to matter, obviously, likely a machine

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or a process. The courts have this implicit exception,

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one of them being abstract ideas. And software tends to fall into that.

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But despite all that, even with that

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history, even with the social pressures that are happening,

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software is routinely protected through utility patents. It’s routinely protected

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through design patents like the ornamental

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aspects of animations or graphical user interfaces.

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You can do trademarks for your software. You can even do trade secret depending

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and then Copyright for unique software code expressions. So I

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think it’s still very protectable. But I think where

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I want to go with this presentation now is some of

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the intricacies of copywriting software versus

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patenting software. And what are some of the gotchas? Because these are some

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things like I said as I dug into them more,

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there were some things where I think if a person or

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inventor or company is unwary, they could get caught in a problematic

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situation.

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Ashley, can I interrupt you real quick?

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You listed Gui’s under design patents, and you can do that.

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But graphical user interfaces can also be under utility because

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there’s so much utility underneath them, the algorithms and stuff.

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So it could be either. Yeah, absolutely. That’s a great point.

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Absolutely. And I think that’s where the interesting line

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blurs a little bit between utility and design,

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because separating the ornamental aspect

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from the functional aspect too. And how do you tout the functional aspect

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versus the ornamental aspect, any kind of consumer facing documentation

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and things like that, and making sure you’re kind of following,

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being careful about how you do that.

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So obviously, you all probably know this, but copyrights are meant for

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the literal expression of the

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idea. So like, the little expression of software, code is more protected

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by Copyright, and so it’s guarding against exact replication or derivations

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of that and protect the broader idea. Right.

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That no matter how it’s implemented, if it’s different languages or maybe

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different ways of reducing it to practice, it doesn’t really

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matter unless your claims have that specific reduction to

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practice. Right. Unless you very specifically say you have to do X, Y, and Z.

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And there’s only one way to do X, Y, and Z with code.

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So some of the interesting thing is that I think agile development has

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brought in a lot of interesting opportunities for the patent process.

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I don’t know how many of you are familiar with the agile

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process, but it obviously encourages fast paced work cycles.

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So historically they had like, I think what they called the waterfall development,

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where you basically the

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team that was deciding what the product features would be. They would basically plan

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out the entire product and then throw it over the wall to

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the developers and then, you know, some years later the developers would emerge with a

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product and that product didn’t necessarily account for

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real time feedback or usability or consumer feedback

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or changes in the product pathway or anything like that. So it kind of caused

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this problem that you needed to iterate on more

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smaller segments of software to get it to be where you want it to be

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for consumers. And so it’s faster pace, work cycles,

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rapidly evolving objectives. You can change what each product,

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each segment of the product, how it behaves and how it looks based

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on consumer feedback to the prior iteration or additional

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feedback that happens later on. So it’s just easier to kind of evolve the product

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over time. They also do very stringent resource prioritization.

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So putting developers on that

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cycle at that time and then reallocating them to the next one and tying it

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together and then incremental completion.

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So again, continuous delivery of smaller portions. And then

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I think this creates a problem in the sense that

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it’s harder to know when there’s enough there to protect you’re only seeing

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these little bits happening from a software development cycle from

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an IP perspective,

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sorry, without the forest, it might be hard to see the trees. And so being

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able to kind of see both aspects of it through this incremental development

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and making sure that you’re abreast with the development team as they’re developing, as objective

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change, as prioritization change, as features change, making sure that you’re

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kind of on board with the development team to see what happens when.

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And then, of course, there’s the risk with early disclosure and customer

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feedback, with the shorter experience, you’re getting more feedback potentially

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at shorter intervals. You’re pushing it out to consumers potentially. In theory, this is all

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experimental use, but in the event that it’s not that you’re

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actually selling it and still doing customer testing and feedback,

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this can also present problems for clients as well. And then lastly,

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of course, we always have I think we all experience this a

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lot. Inventors always want to self censor and say, well, it’s just a

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simple thing like everybody does this in software. Everybody uses

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this code to do this, everybody does that. But again, in the bigger pie,

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in the bigger forest, does that the way they’ve used that code make a

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difference? Does their implementation make a difference?

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So here’s kind of one example of agile software.

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And so obviously many companies do this differently. But what I think

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is probably the most useful places

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for IP input is that you’re going to look for it. Do you have the

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requirements and user input? Of course, us being involved in that

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process, I think is really important because you’re starting to understand what’s the problem

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that they’re solving, what’s the product that they want to build, what do the

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users want out of this product? But then it’s really the planning

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phase and they’re starting to think about how they’re going to reduce it to practice,

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or what are the chunks, the different sprints that they’re going to do?

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I think it’s a great point for us as practitioners to step in and

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start to identify whether might be protectable elements. And then of course,

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as development sprints happen, you’re going to start to see actually how

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things play out in terms of how they’re actually developed. So you may say that

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the problem to solve is this or we want to solve it via that.

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But of course, as all software development can

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be really difficult at times, they’re going to encounter different problems,

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different technical problems that we can evaluate from

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a patentability perspective at each development for under each development cycle.

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And then lastly with user review, if they’re pushing it out, to use it for

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beta testing, if they’re having internal people do it, or however they’re

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getting that test group feedback,

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obviously you’re going to want to do that before they push it out and you’re

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definitely going to want to do it before they release it. And then

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lastly, I think the retrospect is interesting because that

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allows everybody to weigh in on how things went.

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Do they go well, do they not go well, do things behave like they wanted

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to or what were alternatives to what were done?

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And so I think even in the retrospective phase could be a

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valuable place to see if there is it just because I

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think that could be an opportunity to define what alternatives

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there may be. I noticed different developers are

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going to tackle a problem in a different way. And so through that retrospective,

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different developers hopefully speak up and say, I like the way you did

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that, but I would have done it this way differently.

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So that’s just one example where I think we can kind of play into the

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software development cycle.

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And so then again, like just going after this

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further is that I think from a software, if you look

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at each one of these data points as a sprint, you have four sprints shown

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you really can have multiple provisions being filed and then

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all being wrapped up into one utility right before release.

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And also you could of course abandon different Provisionals at different times

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without really any penalty. So I think being

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able to do the smaller chunks of software patents, I think with the

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bigger goal in mind, with a better, bigger product in mind, with the bigger problems

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to be solved in mind with really making

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sure you’re seeing the forest. Yeah,

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I agree, Ashley. This is a good strategy,

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especially with the Provisionals earlier, because the biggest buzz saw that I see

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clients run into with agile development in house is losing

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foreign protection because you’ve inadvertently disclosed.

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So you get to the end or you get

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to the middle and you can’t actually go after foreign rights because you’ve inadvertently

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disclosed or behind a flag or whatever. And in software

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it’s really difficult to prove it was experimental use.

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It’s so easy to get to. It’s so easy to release. Right?

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Right. Do they do a lot of stuff

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in their user agreements that say anything like that?

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Yeah, as long as you’re under NDA and I believe,

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of course, no sales. But as long as you’re under NDA and you haven’t sold

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it,

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I’m trying to think what else, but definitely NDA,

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you want to be careful because that isn’t truly a release

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to public. Right. So then you can protect a

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lot more further back. But if you have these Provisionals going along,

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as long as you don’t go past your one year of that prior one,

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you can go back and get all of that protection in a foreign

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space. The bigger

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problem, though, is they often want to release full product

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at each little tick because it’s usually an app or

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it’s something that does five things

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and they’re working on one of five. Right. So that’s kind of hard

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even to write a provisional about a simple thing if it doesn’t seem all that

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inventive at first glance. Right. So I

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don’t know. I mean, maybe it’s a cheaper than normal provisional. I don’t know.

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Do you see a lot of in that world? Do you see a lot of

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continuations in part before publication dates and stuff like

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that to try to capture? I do.

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Well, you can do it that way. And it’s kind of unfortunate because you do

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lose some stuff. But more often than not,

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I see, because they’ve taken an agile approach to

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software, they’ve lost a huge chunk of their

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invention. And so they have to take this point and go forward and

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they can only invent and claim forward. Right.

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So sometimes that means you only get a couple of methods.

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You don’t get a fully functional piece of software,

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you just get a few algorithms. Right.

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It’s tougher. But if your people know, if you tell

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them, you’re going to run into form filing problems, if you don’t disclose early and

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often to your IP team, if you don’t think about these things

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early, it could be a problem. And basically you can look at

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this from a PowerPoint at a product developer

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product management level. When those steps are being

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presented to the company internally, an IP attorney

17:02.154 –> 17:05.690

or IP agent can take that slide deck and pull out what they think

17:05.740 –> 17:09.450

might be inventive and then have those quick inventor discussions

17:09.570 –> 17:12.758

to see if they are indeed something new that is not

17:12.784 –> 17:16.334

yet released. Right. That’s what we did at

17:16.432 –> 17:19.862

Scientific Atlanta. We had every product

17:19.936 –> 17:24.338

management meeting. We had the It guy right

17:24.364 –> 17:27.974

there. He was part of the meeting. So we would

17:28.012 –> 17:31.698

even as a product manager, that was our goal,

17:31.794 –> 17:35.630

to look at anything inventive and then send it off immediately.

17:37.570 –> 17:41.282

Okay. So then inside Council would send that to outside

17:41.356 –> 17:44.586

counsel, and outside Council can be paid to do the due

17:44.598 –> 17:48.530

diligence to follow up to do some interviews, and sometimes it doesn’t turn into

17:48.580 –> 17:52.638

an application, but it’s still a couple of hours of analysis and interviews.

17:52.734 –> 17:55.480

It’s still a feed structure of work,

17:56.350 –> 17:59.766

even if it doesn’t turn into a patent.

17:59.838 –> 18:04.120

But I think the hard part is as giving

18:04.870 –> 18:08.402

companies and inventors to be

18:08.416 –> 18:12.042

more inclusive in the sense of bringing

18:12.186 –> 18:15.950

legal counsel on for the ride a little bit. I think it’s just an extra

18:16.120 –> 18:20.438

step and extra burden, but I think the payoff can be really big as well.

18:20.464 –> 18:24.918

You’re both pointing out some

18:24.944 –> 18:28.938

of this. I just go to the user agreement stuff. It’s having some

18:28.964 –> 18:32.718

of that NDA language in there, and that any

18:32.744 –> 18:36.318

of the feedback that your clients going to be receiving can

18:36.344 –> 18:39.078

be incorporated into the product, can be used in the product,

18:39.164 –> 18:42.642

and without royalties or

18:42.656 –> 18:46.294

payments, you are going to be getting feedback from consumers around different product sets

18:46.342 –> 18:49.590

and different improvements we made. And so we definitely

18:49.640 –> 18:52.758

want your client to own that. So I think, again, we just not like

18:52.784 –> 18:59.074

we’re going to drop this language for them as agents. But I think making

18:59.112 –> 19:02.782

sure your client is thinking through all of the contracts. I think the more and

19:02.796 –> 19:05.710

more I deal with small companies or solos,

19:06.210 –> 19:10.306

the more I’m surprised that a

19:10.308 –> 19:12.886

lot of them don’t have basic agreements. I spoke to a gentleman the other day

19:12.948 –> 19:16.510

who has been working with another individual. This is a software. This is

19:16.560 –> 19:20.558

an actual device, but hadn’t

19:20.594 –> 19:23.734

done an agreement with that gentleman with his company. And so if that person

19:23.772 –> 19:28.270

became disgruntled later and decided that whatever

19:28.320 –> 19:31.462

he brought to the table was valuable enough and he didn’t want to assign it

19:31.476 –> 19:35.770

or something, now you have this weird issue. And so I think really

19:35.820 –> 19:38.618

reinforcing the clients the value in contracts,

19:38.654 –> 19:41.722

NBA contracts, work to hire all that kind of stuff and making sure

19:41.736 –> 19:44.566

they have it’s not like we have to do that. We’re not going to be

19:44.568 –> 19:48.240

doing that work. But I think we all view ourselves as

19:49.050 –> 19:52.814

responsible for them, hopefully conducting their business in a responsible

19:52.862 –> 19:56.458

way. And sometimes that means reminding them

19:56.484 –> 19:59.340

that they need certain contracts and stuff like that.

19:59.850 –> 20:01.920

Sure. They haven’t gone yet.

20:04.170 –> 20:07.882

Okay, some open source considerations. This is probably the most, like eye opening thing to

20:07.896 –> 20:11.554

me, I guess a little bit. I guess not like the copy left stuff

20:11.592 –> 20:13.800

and things like that. But anyway,

20:15.750 –> 20:19.514

obviously there’s open source licenses. These are royalty free Copyright

20:19.562 –> 20:23.198

licenses, branching third parties the rights to copy, modify, and distribute

20:23.234 –> 20:26.722

computer code with strings attached that are dependent on the type of

20:26.736 –> 20:30.278

source code that you’re using. Most of us are probably familiar with copy

20:30.314 –> 20:34.934

left, where essentially if you incorporate copyrighted

20:34.982 –> 20:38.398

software into your software, then you have

20:38.424 –> 20:41.818

to distribute that software with the same parameters as the

20:41.844 –> 20:45.298

copy last source code. So essentially you have to make

20:45.324 –> 20:48.538

your software open source, which I’m sure your client would juggling that

20:48.564 –> 20:51.922

like or maybe they do have certain portions of it, but you have to make

20:51.936 –> 20:54.970

your whole base open source, and that’d be ideal.

20:56.370 –> 20:59.890

And I think other questions that we get from clients is

20:59.940 –> 21:03.062

that whether open source can be patented.

21:03.206 –> 21:06.374

And so it can be and is often patented.

21:06.542 –> 21:10.330

And so it just depends on how you’re using it,

21:10.380 –> 21:15.110

how you’re extending beyond that open source, because obviously that open source software

21:15.170 –> 21:18.802

code is available to the public. So I

21:18.816 –> 21:22.142

mean, I view it as a published prior art document for all intents

21:22.166 –> 21:25.390

and purposes. And so how is your client actually using

21:25.440 –> 21:28.970

that open source code? How are they extending beyond it? How are they incorporating

21:29.030 –> 21:32.422

into their product? How are they using it, all that kind

21:32.436 –> 21:36.574

of stuff. But there are built

21:36.612 –> 21:39.502

into open source. Again, it depends on the license. So you want your clients to

21:39.516 –> 21:42.960

be able to read that and weigh the

21:44.790 –> 21:48.758

implications of that license. There’s a lot of times some kind of express or implied

21:48.794 –> 21:52.490

license grant in open source software. So if your client is incorporating

21:52.550 –> 21:55.966

it, they’re likely fine to do that. But again, they just need to understand

21:56.028 –> 21:58.750

what the licenses and the requirements of that license.

22:00.150 –> 22:03.730

Interestingly, there’s also patent retaliation clauses.

22:04.710 –> 22:08.834

So if your client attempts to assert

22:08.942 –> 22:12.422

infringement against the OSS developer, there’s causes

22:12.446 –> 22:15.322

in there that can prevent that kind of activity. So again, it’s kind of a

22:15.336 –> 22:18.358

two way street. Yes, you can use this. I’m also protected from you

22:18.384 –> 22:20.460

doing something selling later against me.

22:23.050 –> 22:26.654

So the way I view it, for whatever reason,

22:26.692 –> 22:30.074

this last year, I’ve seen a lot of this come through. And that’s also probably

22:30.112 –> 22:33.880

why we prepared this talk for another group is just that,

22:34.750 –> 22:39.002

again, from a contract perspective, you see a lot of clients having

22:39.136 –> 22:43.022

software developed like non technical founders or founders who

22:43.036 –> 22:46.878

don’t have the time to actually do the technical aspects of their product. They outsource

22:46.914 –> 22:50.318

it, but then they don’t do the contracts needed to

22:50.344 –> 22:53.882

protect themselves. Because I’m sure you all appreciate when

22:53.896 –> 22:57.674

you come into relationship with a Dev shop, they have

22:57.712 –> 23:00.734

their own code, right? They have their code bases that they use because

23:00.772 –> 23:03.350

a lot of times they build kind of similar products for a lot of different

23:03.400 –> 23:07.058

businesses. If they’re all doing mobile applications, they may have like a base

23:07.204 –> 23:10.958

mobile application data code set that they use, and then they build upon that

23:10.984 –> 23:14.378

for specific clients. There’s also open source that they need

23:14.404 –> 23:17.438

to be pulling from. And I don’t know any developer that doesn’t pull from open

23:17.464 –> 23:20.786

source because it’d be silly not to because it just gives you such

23:20.848 –> 23:24.722

a bump in how much code you can develop and how quickly you can

23:24.916 –> 23:28.574

then also as a part of the relationship that you’re going to

23:28.612 –> 23:32.066

form with a Dev shop, there’s also going to be new code generated that specific

23:32.128 –> 23:35.750

to your product. And so the product obviously lies somewhere in

23:35.860 –> 23:39.134

that Venn diagram of the Dev shock code, the source code and

23:39.172 –> 23:42.710

your new code. And so what I think people

23:42.760 –> 23:46.442

don’t fully always realize is that you

23:46.456 –> 23:49.910

need to have contracts in place to make sure that

23:49.960 –> 23:52.974

the new code is controllable by your clients,

23:53.142 –> 23:56.378

making sure that whatever contract is created, make sure that any new code

23:56.404 –> 23:59.730

that’s developed as part of that product is controllable by your client

23:59.790 –> 24:03.854

or has the It rights are assigned to your client. You have to make sure

24:03.892 –> 24:07.914

that they’re complying with the open source licensing

24:07.962 –> 24:11.486

structure. And then there’s lots of the Dev shop. The desktop has

24:11.488 –> 24:14.750

to be brought along in the process of making sure that they’re complicit in whatever

24:14.800 –> 24:19.022

agreement is set up. We had a client come to us where they

24:19.036 –> 24:22.418

had come to us right before a conversion event, and they

24:22.444 –> 24:26.800

had a product developed. They paid the development company

24:27.310 –> 24:30.998

for the software development, but this company had

24:31.084 –> 24:34.478

obviously based code that they were developing off of. They do a lot

24:34.504 –> 24:37.898

of like ML stuff for a lot of different companies and there was

24:37.924 –> 24:41.538

no development agreement up front. And so then when it came time to conversion,

24:41.574 –> 24:45.254

when we’re trying to figure out assignments and all that kind of stuff, the Dev

24:45.292 –> 24:48.602

shop says, no, it’s built on our

24:48.616 –> 24:51.890

base code, we own it. Our clients are saying, no,

24:52.060 –> 24:55.600

I pay you for all of this, we own it.

24:55.990 –> 24:59.282

And it was an amicable relationship where I think even the desk shop had

24:59.356 –> 25:03.086

invested in this company and they had a really hard time

25:03.148 –> 25:07.074

coming to terms. And ultimately the terms became too, which was not ideal,

25:07.122 –> 25:10.638

but better than nothing was that the Dev shop and the client

25:10.674 –> 25:14.438

company became co owners of the IP. But from a

25:14.464 –> 25:18.270

licensing investor acquisition perspective,

25:18.330 –> 25:21.794

it could be really problematic that that structure exists. And so

25:21.832 –> 25:25.274

it just really underscore the need for there

25:25.312 –> 25:28.514

to be some kind of agreement upfront that says, we already understand Dev shop,

25:28.552 –> 25:31.946

but you’re bringing this to the table. You understand that we’re bringing this to the

25:31.948 –> 25:36.074

table and paying you for certain things. And then the thing that’s developed out

25:36.112 –> 25:39.554

of this relationship, who owns that, what does that mean?

25:39.652 –> 25:43.602

Whose name is listed on IP? How is that controllable?

25:43.746 –> 25:47.066

Whatever. And you’d be surprised. At least I was.

25:47.128 –> 25:49.658

I guess this last year has been a really big eye opener for me about

25:49.684 –> 25:53.078

how many companies don’t set

25:53.104 –> 25:56.766

up this way. They don’t do these diligence

25:56.898 –> 26:00.242

stats early on. They create problems that we have to fix later, which can be

26:00.256 –> 26:01.000

really difficult,

26:05.690 –> 26:07.760

actually, before you go on,

26:08.630 –> 26:12.426

which is reminding me of the recent case with

26:12.488 –> 26:16.354

Java and Google and Android.

26:16.522 –> 26:20.094

Yeah, I know that decision was really

26:20.132 –> 26:24.174

controversial, but it

26:24.212 –> 26:28.078

seems very tricky. The previous Venn diagram

26:28.114 –> 26:32.238

you had, especially with the open source compliance stuff,

26:32.324 –> 26:36.102

it seems I don’t do a ton of software work,

26:36.296 –> 26:39.790

but in that decision and some other conversations

26:39.850 –> 26:43.498

we’ve had and such, it seems that a lot of Gray

26:43.534 –> 26:47.734

area. Do you agree with that? Is everybody familiar

26:47.782 –> 26:50.718

with Christian? Yeah, yeah,

26:50.864 –> 26:55.638

actually, I have prosecuted for Google since about 2006.

26:55.784 –> 26:59.480

Nice. And they are very touchy about this,

26:59.930 –> 27:03.874

so much so that they have a lot of partnerships.

27:03.922 –> 27:07.230

They do a lot of this sort of combination where the Dev shop

27:07.280 –> 27:10.482

code isn’t a Dev shop, it’s another company or it’s another set of

27:10.496 –> 27:13.818

inventors, or it’s another product or piece that they’re going

27:13.844 –> 27:17.370

to acquire or they’re looking at acquiring and they will actually

27:17.420 –> 27:19.230

go together and file IP.

27:20.990 –> 27:25.626

They do that out of hope to get something usually

27:25.688 –> 27:28.842

from the engineering team and the development side and

27:28.856 –> 27:32.082

to get that skill set in house rather than the

27:32.096 –> 27:35.394

IP that would come from it immediately. Right.

27:35.492 –> 27:39.102

So future IP that maybe isn’t quite related to

27:39.116 –> 27:42.330

that or is a little bit different then. They do have rights to that right

27:42.380 –> 27:47.060

after they’ve acquired. But from

27:48.830 –> 27:52.834

an open source standpoint, they just pay attention

27:53.002 –> 27:58.450

when it comes to IP. They’re very

27:58.500 –> 28:02.314

well versed in what they can and cannot do. So much

28:02.352 –> 28:06.038

so that even their engineers have a clue about when they’re

28:06.074 –> 28:09.602

using open source, when they’re creating open source,

28:09.746 –> 28:13.402

what they can release, what can go behind a flag, for example,

28:13.476 –> 28:16.354

on Chrome and what cannot. They’re huge,

28:16.512 –> 28:18.790

hugely paying attention.

28:19.650 –> 28:22.080

But even that, it happens to them.

28:24.210 –> 28:26.914

The thing is to avoid it, but they also want to be part of that

28:26.952 –> 28:30.970

industry. So it’s really hard to avoid. Yes. So from your

28:31.080 –> 28:34.860

experience and perspective, I don’t know if you know

28:35.490 –> 28:39.250

this Google versus Oracle decision from April,

28:40.350 –> 28:41.530

but essentially,

28:44.830 –> 28:48.640

I guess it was the Supreme Court. Yes, the Supreme Court said that

28:49.090 –> 28:52.322

Google was not infrinting or rather

28:52.396 –> 28:57.002

that Oracle didn’t have a

28:57.016 –> 29:00.414

right or that the patent was valid, I guess is maybe what the decision

29:00.462 –> 29:03.582

was. Because even though it was hundreds and hundreds

29:03.606 –> 29:07.358

of lines, maybe thousands of lines of code, it was somehow like

29:07.504 –> 29:11.642

not integral or like because it was the

29:11.836 –> 29:15.654

right. Sorry. Because they said it was the APIs,

29:15.762 –> 29:19.062

which are like not they never spoke

29:19.086 –> 29:23.054

to the copyrightable of APIs. They basically said because it

29:23.092 –> 29:25.130

was like an organizational scheme,

29:26.830 –> 29:30.674

even though, like I said, it was like a huge percentage of the actual code

29:30.712 –> 29:34.338

base. It was insane. But yeah, it was an API

29:34.374 –> 29:37.814

and not something that they were privy to.

29:37.852 –> 29:39.880

They were just using it. Right.

29:44.270 –> 29:47.466

Oss compliance. I mean, by your

29:47.528 –> 29:50.622

understanding and everything is Google

29:50.696 –> 29:54.310

Incompliance. Were they doing all that properly and Oracle

29:54.490 –> 29:57.882

was in the wrong? I don’t know,

29:58.076 –> 30:01.350

because I know how Google normally works and they normally would

30:01.400 –> 30:04.758

comply with any and all things like that because they would usually

30:04.844 –> 30:07.820

be the big dog that someone was trying to sue. Right.

30:08.390 –> 30:11.694

So they work really hard to not work

30:11.732 –> 30:14.778

in that space if they don’t have to, but to also share when they

30:14.804 –> 30:15.380

can.

30:18.630 –> 30:22.738

But honestly, it’s a matter of who

30:22.764 –> 30:26.074

is using what, how they’re using it and how much access they have

30:26.112 –> 30:29.520

to it as a matter of write.

30:29.970 –> 30:33.806

So if it’s true open source, it’s usable

30:33.878 –> 30:37.570

and it’s viewable. Right. I can see the code in that API,

30:38.070 –> 30:41.498

which is usually not the case, but true open source

30:41.534 –> 30:43.380

code. That’s how I look at it.

30:44.910 –> 30:49.138

Interesting. Okay. But that’s also if

30:49.164 –> 30:51.598

you look at kind of what went on there and what has gone on in

30:51.624 –> 30:55.618

similar situations, that’s how standards are born, too. Sometimes when

30:55.644 –> 30:58.798

it becomes the standard, people are like, well, we’re not going to pay for it.

30:58.824 –> 31:02.594

Right. Just the standard. And it’s just a little different path.

31:02.642 –> 31:06.526

Right. Well, I think it gets a little tricky, at least from

31:06.588 –> 31:10.126

the clients I’ve dealt with. Is that how do you

31:10.248 –> 31:13.594

ensure because a lot of times you have a software, you got to express the

31:13.632 –> 31:18.130

base, you got to express the base technology

31:18.300 –> 31:21.658

and the actual product. Right. Like, you can’t just do it at such a high

31:21.684 –> 31:25.318

level that you’re like, here’s the product that I’ve shopped made for

31:25.344 –> 31:30.262

us, and here’s just that piece. A lot of times you need to like,

31:30.276 –> 31:33.442

in this case, it was like base ML programs and things like that that were

31:33.456 –> 31:36.670

being used in an ML centric

31:37.110 –> 31:40.678

applied ML case. You still have to go into the

31:40.704 –> 31:43.714

details of the ML. Right.

31:43.752 –> 31:47.902

How it’s trained, how it’s used, how it’s whatever. And so I think a

31:47.916 –> 31:51.334

lot of the great areas speaking to your point, David, that came into this case

31:51.372 –> 31:55.706

was that in order for us to effectively claim

31:55.898 –> 31:59.398

and draft about the new code that

31:59.424 –> 32:01.150

was developed for our clients,

32:02.370 –> 32:05.974

we had to disclose to some degree the

32:06.012 –> 32:12.214

code that was the base code that the Dev shop brought and

32:12.372 –> 32:15.720

future proof for that Dev shop because the Dev shop doesn’t want to. Later,

32:16.650 –> 32:20.242

you have claims that are broad that could be applied to any case when

32:20.256 –> 32:24.358

they’ve used that code for other clients. So you

32:24.384 –> 32:27.694

do have to enable everything. But sometimes

32:27.852 –> 32:30.982

your machine learning is not

32:31.116 –> 32:34.798

novel because it’s not a new network. It’s kind of

32:34.824 –> 32:38.078

off the shelf, if you will. It’s not newly trained

32:38.114 –> 32:40.978

except for it happens to be on your data. Right. But it’s not a new

32:41.004 –> 32:44.818

kind of data or it’s not a new problem solved. But you

32:44.844 –> 32:48.778

can claim that you’re receiving this content, gathering this

32:48.804 –> 32:51.982

data, you’re putting it into some sort of

32:51.996 –> 32:55.342

neural network system or some sort of machine learning black box,

32:55.536 –> 32:58.858

and something is created out of that and you do something with

32:58.884 –> 33:02.640

what’s created out of that. So this kind of another way to claim that

33:03.090 –> 33:06.418

without saying I’ve invented this neural network, I’ve invented this

33:06.444 –> 33:08.580

machine learning process, right?

33:09.930 –> 33:13.630

Yeah, for sure. There’s only some ways. But my experience,

33:13.680 –> 33:17.580

too, with the Patent office, with machine learning and AI, though, too, it’s just like

33:18.510 –> 33:22.418

a generic recitation of an offtheshelf Mlai

33:22.514 –> 33:26.282

is not enough. They still want to know the details,

33:26.366 –> 33:29.038

even if it is off the shelf. They want to know the details of how

33:29.064 –> 33:32.530

it’s done either in the SAG and then maybe even to some

33:32.580 –> 33:36.398

degree in the claims. And so it gets that weird in that client

33:36.434 –> 33:39.970

case, you may be the co ownership with appropriate because at some point

33:40.020 –> 33:43.814

the client decides to be super broad and just say this ML

33:43.862 –> 33:47.698

system, then the other party can say we

33:47.724 –> 33:50.160

own that patent because that was our base pack.

33:51.450 –> 33:55.162

I know it’s weird when

33:55.176 –> 33:58.838

I do claim that for somebody who is kind of using an off the shelf

33:58.874 –> 34:02.662

thing that they’ve trained just a little differently, I will put the actual

34:02.796 –> 34:06.550

machine learning pieces in a dependent claim. I try

34:06.600 –> 34:10.126

really hard to keep it out and sometimes I just explain it in

34:10.128 –> 34:12.660

the specification and leave it at that. Right.

34:13.350 –> 34:17.086

Just because it really wasn’t the crux of their invention. Right,

34:17.148 –> 34:17.760

right.

34:21.390 –> 34:24.550

You guys thoughts on this stuff? This is just two things I’ve been

34:24.600 –> 34:27.778

thinking about recently. Is one, should there

34:27.804 –> 34:29.890

be like a specific software patent?

34:31.590 –> 34:35.102

So in the world of utility patent or like patents

34:35.126 –> 34:38.422

and gentlemen, in the US, for example, there would be a design patent, there would

34:38.436 –> 34:42.302

be a utility patent that covered biotech and diagnostics

34:42.386 –> 34:46.080

and that kind of stuff. And it gets a little weird with

34:47.370 –> 34:50.638

digital health and stuff like that. Right. But then

34:50.664 –> 34:54.386

it should be like there’s some other kind of software patent where you don’t

34:54.458 –> 34:58.162

have to worry about 101 then, because that’s the whole reason for that patent class.

34:58.236 –> 35:01.978

If it’s for software patenting and maybe it has a

35:02.004 –> 35:05.818

shorter time frame and maybe it’s renewable after some time

35:05.844 –> 35:09.610

period, that’s the other thing. Software is so quickly. Iterative that

35:09.660 –> 35:12.958

I can imagine a lot of software patents could be obsolete in ten years

35:12.984 –> 35:15.780

just because software has expanded beyond that.

35:17.070 –> 35:20.702

And then could you link to some kind of like code repository

35:20.786 –> 35:24.240

or code listing if it were open source to further enable it?

35:25.530 –> 35:28.810

I don’t know, just something because it would obviously remove all the section 101 issues

35:28.860 –> 35:31.558

because that would be the whole purpose of that patent. So it’d really be just

35:31.584 –> 35:34.334

down to novelty, obviousness disclosure,

35:34.382 –> 35:37.918

enablement and things like that. So that’s one point for discussion. And the other

35:38.004 –> 35:41.918

point is I think the unfortunate

35:41.954 –> 35:46.118

part of the patent system is that a lot of small inventors

35:46.274 –> 35:49.402

don’t it’s really hard for them to even recoup their cost of

35:49.416 –> 35:52.898

getting patent. And they may be super innovative, but then the bigger companies do tend

35:52.934 –> 35:56.450

to just squash them and suffocate them in fees

35:56.510 –> 35:58.800

and courts and IPRs and all that kind of stuff.

36:00.210 –> 36:03.758

Recently just heard like, I didn’t know much about this, but we were listening

36:03.794 –> 36:07.438

to this werewolf song on the way back from a cider mill this

36:07.464 –> 36:10.994

weekend. And it’s the exact same opening

36:11.042 –> 36:14.434

riff as Kid Rock. It was one of Kid Rock’s songs. But of course

36:14.472 –> 36:18.310

this werewolf song was like crazy old and Kid Rock song was

36:18.360 –> 36:21.670

not crazy old. We were sitting in the vehicle thinking,

36:21.720 –> 36:25.294

how did Kid Rock, did he just take this and use

36:25.332 –> 36:29.450

it and say, Screw you earlier song? I’m just going to use your Copyright song?

36:29.570 –> 36:33.202

Or did he actually be responsible and pay royalties and

36:33.216 –> 36:36.418

everything? Well, what came out of our little research in the vehicle was

36:36.444 –> 36:39.646

that the Copyright world, especially for music.

36:39.708 –> 36:43.270

I don’t know if this transcends into other types of Copyright, but they have

36:43.320 –> 36:46.390

a statutory mechanical royalty rate

36:46.560 –> 36:50.750

that is set forth by the Copyright arbitration loyalty panel

36:50.870 –> 36:54.562

for compulsory mechanical licenses. So basically,

36:54.636 –> 36:58.498

assuming that the work has been previously released to the public, this is

36:58.524 –> 37:02.486

a licensing fee the licensee can pay to sell a cover version

37:02.558 –> 37:06.442

of a song without having to obtain direct permission from the

37:06.456 –> 37:10.090

rights holder. So in the US, this rate is 9.1 cents per track,

37:10.140 –> 37:13.534

or 1.5 cents for each minute of playing time,

37:13.692 –> 37:17.050

whichever is greater. So I’m just wondering, to make it more fair

37:17.100 –> 37:21.300

for smaller inventors, smaller companies,

37:21.630 –> 37:25.522

is there a world where we need to have some kind of like statutory rate

37:25.656 –> 37:29.266

where if we assume all patents are valid because they did go through this crazy

37:29.448 –> 37:33.394

patent office procedure before

37:33.432 –> 37:36.862

you release the product, you go through some kind of diligence. And if

37:36.876 –> 37:40.740

you find patents that reasonably cover what you’re doing,

37:41.250 –> 37:44.498

even if you can maybe make an argument that the one word in the patent

37:44.534 –> 37:48.274

that you may or may not do is there some base

37:48.432 –> 37:51.802

rate that you have to pay to that inventor? Because it

37:51.816 –> 37:55.322

assumes that the Usto job does job correctly, it assumes the patent

37:55.346 –> 37:58.870

is bad, assumes everybody was good actors, and it allows for at least

37:58.920 –> 38:02.242

some cost to be recuperated by

38:02.256 –> 38:05.614

full inventors. I don’t know, just weird things I’ve been thinking about

38:05.652 –> 38:09.478

lately. So curious about your thoughts on the whole software patent idea and

38:09.504 –> 38:13.310

the statutory rate idea for patents, the software

38:13.490 –> 38:16.426

like patent Copyright sort of idea.

38:16.548 –> 38:19.934

It just reminds me of. And this is a really odd

38:19.982 –> 38:23.710

thing. I haven’t dealt with this a lot, but I know in the semiconductor world

38:23.760 –> 38:25.680

there’s something called a mask work.

38:29.530 –> 38:33.354

Intel designs a processor, and it could have hundreds

38:33.402 –> 38:36.422

steps in the process. And each one of those is a pattern that needs a

38:36.436 –> 38:40.218

mask. It all fits together in this big 3D layout. And it’s

38:40.254 –> 38:44.382

like, sure, there’s lots of patentable technology in there, but it’s

38:44.406 –> 38:48.434

almost like a whole separate thing. How do you get everything to

38:48.472 –> 38:51.554

fit on one chip? How big do you make

38:51.592 –> 38:54.278

this line? How big do you make that line? What do you put next to

38:54.304 –> 38:57.606

each other? And there’s a lot of sort of design innovation

38:57.678 –> 39:01.022

whatever in that. So it’s basically just a

39:01.036 –> 39:04.434

Copyright, though. It’s not even a design patent

39:04.482 –> 39:07.634

where there’s like a claim, what we show

39:07.672 –> 39:11.622

in these figures or whatever. You can word that in design path in a mask

39:11.646 –> 39:14.570

work, apparently it’s just like a Copyright but it’s,

39:15.310 –> 39:18.738

I guess a vehicle for that, for a specific mask

39:18.774 –> 39:23.080

set in the semiconductor world. I wonder if there could be a special

39:24.670 –> 39:27.938

software Copyright or something that would do

39:27.964 –> 39:31.346

something similar. Yeah, no, I like that. I think it’s really interesting,

39:31.468 –> 39:35.402

I think, pulling from these different spaces because I think there is

39:35.416 –> 39:39.062

an issue with software pens. And I know there’s been a

39:39.076 –> 39:42.566

lot of success, but I think there could be something better or at least

39:42.628 –> 39:45.758

like parallel, another track for people to

39:45.784 –> 39:48.902

take. So I think that’s why I want to look into that more and see

39:48.916 –> 39:52.646

how that’s done, because I think that’s really interesting. So I’m a huge

39:52.708 –> 39:54.280

dissenter of this idea.

39:58.970 –> 40:03.298

Most of it is this. I’ve written code, I’ve designed

40:03.334 –> 40:06.762

consumer products myself. And then I’ve moved into the patent world and

40:06.776 –> 40:09.966

done everything that you could possibly do with software there.

40:10.088 –> 40:13.220

And this is my argument. This phone,

40:13.850 –> 40:17.310

this is a paperweight without software.

40:18.590 –> 40:22.580

It’s a piece of metal. It’s a chunk of nothing.

40:23.150 –> 40:26.190

It needs the software to do what it does. That’s a utility.

40:27.470 –> 40:30.738

If you then move and you say, okay, let’s go online and

40:30.764 –> 40:34.734

talk about some HTML code that sends me an email

40:34.892 –> 40:40.090

that is no longer a definitive

40:40.150 –> 40:43.938

device. It isn’t like a widget as a mechanical design.

40:44.024 –> 40:45.990

Right. Or a mechanical patent.

40:47.390 –> 40:51.738

It’s kind of in the ether. Right, right. But the

40:51.824 –> 40:55.580

engineering behind that has an algorithm and has a design,

40:56.030 –> 40:59.734

and it took an input, it created an output

40:59.842 –> 41:03.678

and it created a display of an output. So those really are the

41:03.704 –> 41:07.806

three things that you typically do with anything

41:07.928 –> 41:11.178

outside of mechanical. Mechanical could just be

41:11.204 –> 41:14.514

a widget. Right. But almost every other

41:14.552 –> 41:18.162

piece of a patent would be take an input, do something, provide an

41:18.176 –> 41:20.600

output. And that’s what software does.

41:21.050 –> 41:24.298

And most of our devices without software are just bricks.

41:24.454 –> 41:27.498

Right. Falls apart a little bit for me.

41:27.524 –> 41:31.134

But Unfortunately, I don’t think the courts are

41:31.172 –> 41:35.070

viewing that’s where there was one of the cases

41:35.570 –> 41:39.346

that it was a camera, like the device was directed

41:39.358 –> 41:42.870

to a camera, but it was like a way to get better,

41:42.920 –> 41:46.702

CRISPR images with a camera or something like that. And it was held

41:46.726 –> 41:50.130

Invalid by either the district court. I think it was a federal circuit.

41:50.870 –> 41:54.106

To me, that’s like so far beyond aspect

41:54.178 –> 41:55.890

idea because it’s a camera.

41:57.470 –> 42:01.234

And again, I think there’s some conflagration

42:01.342 –> 42:04.998

of 103, which is causing some of these

42:05.024 –> 42:08.382

issues as well. And like enablement and sufficiency of disclosure, all that

42:08.396 –> 42:12.442

kind of stuff. Sure. But they’re

42:12.466 –> 42:15.762

not fixing it in that way like they should. So I guess this

42:15.776 –> 42:19.160

is like an end around. If you’re going to fix it like you should

42:19.670 –> 42:22.986

do, we just go around you and do something

42:23.048 –> 42:26.574

different. I understand. I think

42:26.612 –> 42:30.238

there’s like a lot of issues with Alice, with how it conflates 102

42:30.283 –> 42:33.174

and 103 with 101 and all those things.

42:33.212 –> 42:37.078

But Kristen Ashley, I totally

42:37.114 –> 42:40.666

agree. And like there’s a lot of invention innovation

42:40.738 –> 42:44.238

that happens when you write code. And so I

42:44.264 –> 42:47.406

think part of AI is a great example,

42:47.468 –> 42:51.246

too. I think most people,

42:51.428 –> 42:54.834

the examiner, the inventor, the agent,

42:54.932 –> 42:59.038

attorney would all agree there is something here that’s been invented.

42:59.194 –> 43:02.622

But I think where everybody gets hung up, at least the examiner and

43:02.636 –> 43:05.840

the agent or attorney is in the claim language itself.

43:06.650 –> 43:10.506

How did you write it down? So that it is

43:10.688 –> 43:14.382

only covering the real thing that you invented and not

43:14.516 –> 43:18.294

other crazy abstract ideas or other things that are out there or whatever.

43:18.392 –> 43:21.438

And that’s where I think in the semiconductor world, again,

43:21.584 –> 43:25.170

I’m much more on the material side and device side.

43:25.220 –> 43:29.082

But in the semiconductor world, there’s a lot of stuff when you design a

43:29.096 –> 43:32.614

chip that is patentable, but then there’s this whole other component

43:32.662 –> 43:35.240

of it, which is how does everything fit together,

43:36.050 –> 43:39.526

which is sort of how do you write that in a claim?

43:39.598 –> 43:43.146

God, I mean, it would be like thousands and thousands of lines long

43:43.208 –> 43:46.078

to capture all of those design intricacies.

43:46.234 –> 43:48.620

So maybe a situation where there’s like,

43:49.130 –> 43:52.746

value for both sorts of things, there’s value

43:52.808 –> 43:56.446

in figuring out what is the crux

43:56.518 –> 44:00.282

of the innovation that you’ve done here with this code that no one

44:00.296 –> 44:03.882

else has been able to do or take this kind of input and display it

44:03.896 –> 44:07.086

in a certain way or process it differently or whatever. There also

44:07.148 –> 44:10.350

could be value in somebody else. It might have taken

44:10.400 –> 44:13.938

them 20,000 lines to write this code. I did it in 4000

44:14.084 –> 44:18.406

because I figured out a very efficient

44:18.478 –> 44:22.218

way to organize everything or whatever. And that might be where like

44:22.244 –> 44:25.722

a mask work or a software Copyright in a

44:25.736 –> 44:29.180

way like could be a complimentary, right?

44:29.510 –> 44:32.250

Yes. I like this as an alternative.

44:33.350 –> 44:36.226

I don’t like it on its own, but I do like it as an alternative,

44:36.298 –> 44:39.894

especially with somebody who either doesn’t want to pay to argue over

44:39.932 –> 44:43.134

Alice or doesn’t know how to argue over

44:43.172 –> 44:47.082

Alice. Right. Or doesn’t have enough in their specification to

44:47.096 –> 44:50.562

get them anywhere. Right. And to your point

44:50.696 –> 44:54.378

about really lengthy claims, that is how

44:54.404 –> 44:57.462

we got over Alice when it first came out the first year or two,

44:57.596 –> 45:00.270

you just kept adding on another dongle.

45:01.190 –> 45:04.760

It was awful. And you would get the worst claims because

45:05.510 –> 45:08.526

you didn’t want to get the client nothing. I did a lot

45:08.528 –> 45:11.802

of work for SAP back then and that’s business method stuff,

45:11.876 –> 45:15.850

and they were attacked horribly every time they went anywhere

45:15.970 –> 45:17.120

with a claim set.

45:19.650 –> 45:23.002

That’s interesting. Let me bump you

45:23.016 –> 45:25.990

all. For example, I’ve been really thinking about this, and I think there’s an opportunity

45:26.100 –> 45:29.770

for some kind of bigger discussion about just

45:29.820 –> 45:33.274

alternatives, like even just to put my mind

45:33.312 –> 45:37.140

at rest at night about these things.

45:38.190 –> 45:40.894

What are people’s thoughts on this? And I know we have to probably get going

45:40.932 –> 45:45.060

here, but anybody’s thoughts on a statutory rate for

45:45.510 –> 45:49.198

the patent world. I don’t know how it would be policed or

45:49.284 –> 45:52.762

set up or whatever. I think

45:52.776 –> 45:56.482

it’s interesting. It’s tough. The one

45:56.556 –> 45:59.962

challenge might be beyond something like in the music industry. And a song is a

45:59.976 –> 46:03.158

song. It kind of has a standard scope,

46:03.254 –> 46:07.258

if you will. Certain markets can go into whatever with

46:07.284 –> 46:11.662

a lot of software and things like that. How do you decide on is

46:11.676 –> 46:15.298

it the same rate for a little piece

46:15.324 –> 46:19.154

of software in that sensor of a little photo detector,

46:19.202 –> 46:22.702

some super simple thing versus like a computer or an

46:22.716 –> 46:24.960

operating system or something? Yeah.

46:25.710 –> 46:28.882

So a piece of that that you have to remember when talking to any of

46:28.896 –> 46:32.770

your software clients. If somebody comes to you with something that works

46:32.820 –> 46:36.118

way in the back end of the computer and you cannot detect it,

46:36.264 –> 46:39.634

that’s a terrible claim. You don’t even want to go

46:39.672 –> 46:43.630

after that. That’s just somebody who needs to bulk up their portfolio. It’s really

46:43.680 –> 46:47.066

useless to have a non detectable claim because who’s going to infringe and how you’re

46:47.078 –> 46:50.590

going to find it, right? Yeah. I just don’t know how to solve the problems.

46:50.640 –> 46:53.738

There’s just so many small inventors,

46:53.774 –> 46:57.218

small companies that develop really great stuff and other bigger

46:57.254 –> 47:01.538

companies that just can move way faster, have bigger budgets, have bigger

47:01.574 –> 47:05.350

purses, just pick it up and do it and then

47:05.460 –> 47:08.734

smolder them with IPRs and

47:08.772 –> 47:12.118

court cases. I know AI was supposed to fix some

47:12.144 –> 47:14.950

of that, but I think it just made it worse. And then I was just

47:15.000 –> 47:18.362

reading last night some of the newer reforms

47:18.386 –> 47:22.510

that lady and the other one are suggesting.

47:23.190 –> 47:26.482

In my opinion, it would actually make it even worse where it

47:26.496 –> 47:30.314

would be even easier to Institute PPAP receivings

47:30.362 –> 47:33.542

and it would be even easier to cancel claims,

47:33.686 –> 47:37.498

all these things. That would make it even harder, I think, for smaller inventors to

47:37.524 –> 47:41.146

really protect themselves. I definitely get a

47:41.148 –> 47:44.266

few phone calls a year, at least, if not more,

47:44.328 –> 47:47.990

where you have these inventors that really seem to have a legit

47:48.110 –> 47:51.382

thing. And I connected with people that do litigation, things like

47:51.396 –> 47:55.774

that. At the end of the day, nobody wants to pick up litigation on

47:55.812 –> 47:59.050

a like if we win kind of basis,

47:59.730 –> 48:04.214

then you have to pay us. But if not contingency

48:04.262 –> 48:07.942

basis. There we go. That’s the word. What’s the

48:07.956 –> 48:11.482

remedy for the small guys Anywho? Well, thanks for

48:11.496 –> 48:12.840

entertaining me all today.

48:15.370 –> 48:18.590

Yeah. Thanks, Ashley. It’s a great topic. If you have anything

48:18.640 –> 48:21.938

else you want to talk about. Add, I think you should write an

48:21.964 –> 48:26.380

article about this. Actually, I think we’re thinking about doing because

48:27.910 –> 48:30.938

I’ve been doing more bigger thinking.

48:31.084 –> 48:34.538

I don’t know about things and it’s things that keep me up at

48:34.564 –> 48:38.246

night, literally, but putting something together.

48:38.308 –> 48:41.702

I made the same thing. Like, Kristen, if you have some thoughts, if you got

48:41.716 –> 48:45.026

some thoughts, let me know because I might all do one,

48:45.088 –> 48:50.278

like by everybody article and everybody porting

48:50.314 –> 48:53.518

over some of these other concepts into patent

48:53.554 –> 48:56.794

laws because some of the stuff that they’re suggesting

48:56.842 –> 49:00.378

right now in Congress, I’m like dear Lord, you all have

49:00.404 –> 49:04.220

no idea what pudding you’re putting your finger into

49:04.910 –> 49:07.326

and how you’re messing it up.

49:07.448 –> 49:10.686

So maybe there’s nothing but at least

49:10.748 –> 49:12.440

it helps me sleep better at night.

49:16.670 –> 49:20.314

All right, well, thank you. Thank you, Ashley.

49:20.422 –> 49:22.962

Thank you. Nice to meet everybody. Thanks.

49:23.036 –> 49:26.070

Bye. Bye. Bye. Bye. All right.

49:26.120 –> 49:30.474

That’s all for today, folks. Thanks for listening. And remember to check us out@aurorapatons.com

49:30.512 –> 49:33.994

for more great podcasts, blogs and videos covering all things patent

49:34.042 –> 49:37.062

strategy and if you’re an agent or attorney and would like to be part of

49:37.076 –> 49:40.878

the discussion or an inventor with a topic you’d like to hear discussed, email us

49:40.904 –> 49:44.298

at podcast at Aurora patents.com, do remember that this

49:44.324 –> 49:47.838

podcast does not constitute legal advice and until next time keep calm and

49:47.864 –> 49:48.420

patent on.