 Okay, I'm recording now. It's May 2nd. I've got my buddy Mark Gilbreth patent lawyer here in Houston We're walking to to lunch at Del Frisco's say hello mark. Hello so mark is a buddy of mine who's a really smart chemical engineer patent lawyer and kind of a Kind of a smart-ass Libertarian. I don't know how would you describe your politics? That's probably a good description Okay, so I do a lot of talks about IP policy. I thought you could promote your Patent law practice and tell us What your thoughts are on the current patent system and whether you think it's a good idea or What you love in life? Wow, that's a that's a big topic. There are several topics You know, I think the first one is an observation that I have that A lot of the fees seem to be going up quite a bit and the recent fee that I noticed that went up a lot Was the request for re-examination fee went up to seventeen thousand seven hundred and fifty dollars up from roughly $2,520 I think is what it used to be Re-examination fee is higher. Huh? Well the re-examination fee when asked to op astronomical now the most recent fees in March I think it's March 1 Those fees actually Have a have a large entity a small Entity and a micro entity and now for the large entity. It's 12,000 which is significantly less Then 17 750 and certainly for a small entity It's a lot less because now it's only 6,000. It's almost a third So what's the takeaway from this because this is kind of boring details for people it is boring but but the whole point is that the whole idea of doing a re-examination is because and You know, you could take one cynical view and say if the patent office had gotten the answer correct in the first place You wouldn't need to be doing a re-examination And they're even the ones that admit that there's a significant new question of patentability that requires You know that they're gonna allow you to have this re-examination proceed So they're even the arbiters of it and they're even the ones that say yes It should have been that way, but they're making you pay through the nose for it. That's what I think kind of interesting Okay, so let's back up a second. So you are a Kimmy and You went to law school in Arkansas, right? Well Yeah, Kimmy for those that aren't quite that initiated chemical engineer Yeah, I did study a little bit of electrical engineering my Arkansas days were for engineering you were smart enough to be electrical, right? You know, I wasn't smart enough to be an electrical engineer like our esteemed buddy Steph In here, that's right For those of you that don't know Steph into the electrical engineer I Went to law school at the University of Tulsa Tulsa Oklahoma Arkansas was your undergrad, right? Correct. Okay, and So my football priorities are still with Arkansas and of course the Southeast conferences You being an LSU fan rightly understand So we met when we were both adjunct law professors at South Texas Law School about a dozen 15 years ago something like that, right? You were teaching what patent law practice or what were you teaching? You know, I was teaching Patent law, but it was longer than that It was 98 I think 98 99 98 15 years correct. Well time time time flies the money flies the time is money So, um, or is it the other way around? Time flies time is money. So money flies So you have a practice a boutique practice now and you specialize in this and You also know my insane libertarian views and you're you're kind of with me on this Mostly, I think right What what are your basic political leanings? Would you say, you know, my basic political leanings are less taxes less spending less government and of of the three of those If you could just Spend significantly less the other two things will ultimately take care of themselves Because if you spend less at some point, you're gonna have less government And if you keep spending less at some point, you'll have less taxes Do you think that really makes sense to say less government because government just means a governing body of rules So if we're talking about the rule against act murderings You want less government in in that respect, you know, I mean You don't really want less government. You want the right kind of law, right? Wouldn't you say that's the right way to put it? Well, I'm you're looking at it from, uh, I guess a regulation law sort of Side i'm looking at it from a dollar side and that is right for example if For example, you're using size of the proxy Yeah, even if even if you had a lot of crazy laws and regulations on the books if, um, You know like the epa or whatever Enforcement body you want to talk about has no money to enforce those things Do they really matter that much? I guess only to the person that's being chased down So in other words if if we restricted government or the the state to What we would say or the proper functions of the law, it would be a lot smaller So that's a proxy so in other words size of the proxy because I guess this is another thing in which size matters. Yes Not if you have a force But then it's the size of the sticker on the force, I suppose Let's take a little detour here since we have some time take our hangar all over here We're on lock lane by the way coincidence beautiful beautiful lock. I think not lock John lock. There is even an e on the end of it too. Yeah, yeah, john lock. So anyway, um, okay, so what are your views on Do you do you think there should be a patent system? Not but I mean, I know that you want there to be one till you retire Right, but in general do you think society ought to have a patent system? You know, I probably Should have read your paper first and then I'd have to have a better idea about this You know, what's your knee jerk impression? Yeah, well my knee jerk impression is probably like a lot of people it'd be yes. There there should be You know shoulds an interesting word So would you do you think people should vote in favor of repealing it if they had the chance should they repeal patent law? Well, I'll be completely honest. I don't know I don't have a picture in my mind of what The world would look like or even the u.s. Would look like if we quote repeal the patent system Uh, I don't even know that I understand all the changes that have just taken place to the patent Well, let me ask you this other than that fee we just talked about let's suppose someone proposed Uh Making the patent term go from 17 roughly certainly 17 years go down here to A thousand years and uh imposing the death penalty for infringement. Would you be in favor of that? Well, that sounds a little dire You know painted that way. I would say that's probably a little bit Too much of a little bit. Come on. You know just a little bit So the point is you don't want to expand patent protection and scope and term I don't know that you can conclude that from what you just said I'm trying to find if you think that I don't want to go from 17 years to what did what did you say a thousand Well a thousand and plus the death penalty. Yeah, if you just said 17 to 18, I'd go. I don't know right Yeah, but my point is I'm trying to figure out So the the model most people have in their minds is they imagine this bell curve Where the optimum patent term is somewhere between zero and infinity And they just assume it's somewhere around 17 years because our our our wise congress has figured that out Um, I don't think there's any reason to think they have any Any real belief that there is an optimum at all. I don't know if I've ever heard the word wise in congress used Together like that. I don't know the wise is a true Adjective for congress. All right. Well, you have the right cynical attitude But my view is that it's a it's a monotonically decreasing slope like the optimum term the shorter the term the better But the typical view is there's a Gaussian curve In fact, I think there's many Gaussian curves because there's like one optimum term for pharmaceuticals One optimum term for software one option because they don't think there's the right Like you might need three years for software and seven years for pharmaceuticals or whatever So they think there's all these different optimum terms for different things Although we can't really have A panel that can figure that out. So we have to crudely Come up with some kind of proxy, which is just one term so the question is If you wouldn't want to if you wouldn't want to expand the term, would you want to shrink the term? You know, I I don't know And I guess my view on this if you're you know, you're asking me my view is um I haven't really thought about those things as much as you have obviously the way I look at it is I have clients coming in I have clients that want to get a patent right now the term is What it's real, you know to clarify for everybody's really not 17 years anymore from 20 It's roughly maybe it's 15 to 16 years, but it's 20 years from the time of filing the effective Effectively what that means is roughly 17 years maybe 18 because it takes about three years to what we call prosecuted Right, so it's about 17. Sometimes it's five years six years, but and if it's for pharmaceuticals, you can get an extension because of the FDA regulatory delay issue, so yeah, so I just tell You know, I'm basically an information source for my clients I'm telling them what they can do and I my job is to get them a patent right now because that's the system And uh, I think it makes sense for people to want to get patents given that there's a patent system but the question is should we have the system because I mean you can see that there's a cost to the system, right your salary my salary Litigation fees insurance higher product costs reduced competition There's there's definitely some cost to the system Yeah, but you know what I would say is there's probably a cost for any system you have Even the most idealized true But not every system is justified based upon a cost spent like so when you say there should be a law against murder It's because we all agree that murder is just inherently wrong Now we might disagree on how much resources we should put into stopping every act of murder because you spend a billion dollars Stop every act of murder then you're you're harming people overall worse than if you didn't have that But in the patent system it's justified explicitly on the idea that we need this to encourage innovation And we're all better off in a financial and innovation sense Given the bulk of the system So it seems to me they're assuming that there's a cost of the system But there's a benefit that's even far greater than the cost of the system Yeah, that's sort of an implicit assumption of the argument the empirical argument You know my my first introduction to the thought of whether or not the patent system was It's kind of answering your question It was one or not the patent system was justified is there's a number of years ago And I think it was when you were writing your patent your paper to abolish The patent system right that maybe some of our listeners have read That I kind of scoffed at the idea And I remember talking to it was back when I was teaching patent law in law school I talked to another patent law professor who knows everything in the world and I asked him I said I said, you know my buddy is writing this paper and he's saying that the patent system is not justified And I and to me it seems like yeah, that was very 98 99 and my paper came out 2000 So you're remembering right seems like all of the Economists would have long ago justified the patent system or not. Yeah, and I asked my esteemed professor friend about this and I said isn't there I said clearly the patent system is worthwhile economically and monetarily And his answer surprised me. Here's a guy that you know spent a lot of time in the patent system. He says no He says the research is inconclusive. In fact, you can't really prove or disprove That it is helpful or hurtful. There's there's papers on both which surprised me Yeah, I would have thought it was a clear answer and that's the first time that I ever Was open to the idea that maybe we don't need it because this was a surprising answer from A very nationally internationally prominent patent professor Yeah, and in fact, there are there are actually aren't in many papers favoring the pro patent system and they're pretty much universally concluding that we can't prove it or it's it looks like it's a Deadweight cost in society or something like that. So all the papers are pretty much anti-patent So if you're an empiricist utilitarian You looked at that you would have to say they they have improved in their case Anti-patent or anti-pasto what are we talking about? Anti-pasto which we're about to do so All right, so we're going to conclude so tell us your your law firm website because you are a very good patent lawyer Even though it's a corrupt system. I I don't have a website. You used to have gilbreath.org, right? So so if someone wants to hire you they can just email me basically they can email stefan and ask for mark That's right. They can mark gilbreath. I'm sure I'm gonna have to give stefan like a 95 cut for the referral Yeah, because I'm a I'm a I'm a greedy a greedy capitalist bastard I'll have to increase the fee a hundred times, but it'll it'll be worth it. All right. Okay mark. Say. Goodbye. Uh, goodbye