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December 21, 2005

Thicket Headed

BeavisWeek seems dedicated to publishing absurd opinions about patents. This week's scatological blunder, "Cutting Through the Patent Thicket", is by Greg Blonder, who claims to have grown up with patents, but still doesn't seem to understand them.

Like some geezer pining for the good old days, Greg laments "protecting intellectual property (IP) with today's patents is virtually worthless -- despite the large court awards you may read about in the morning paper."

Prolific in his whining, here's Greg's laundry list of complaints:

1) Pendency. Patents take too long. Greg, ever the American infant, wants it now.

2) The first few patents shouldn't count; from which Greg descends into babble. "A company's most valuable IP almost always results from later insights... Competitors are busy inventing as well, and since the U.S. Patent & Trademark Office often grants trivial and overlapping patents, IP minefields may be waiting to explode. Or perhaps the IP is all duds. Who knows?" Greg sure doesn't seem to know; maybe he hasn't heard of prior art search, but that would be odd, considering he has a few patents under his belt.

3) Patents cost too much... and "much patentable IP is left on the cutting-room floor, at the risk of allowing trivial variations filed by competitors to block the originator's path to market." Well, gee, Greg, find someone who can draft better claims. Not to mention that, on the one hand, Greg complains today's patents are worthless, then, on the other hand, "much patentable IP is left on the cutting-room floor". Does that mean that, combining the two complaints, that garbage is left on the cutting-room floor?

4) Venture capitalists are gullible and gutless. "Few venture-capital-backed companies will ever dare to defend their IP in court. If they do, they'll risk losing customers and squandering anywhere from $1 million to $5 million of their precious venture funding." Does Greg mean that venture capitalists regularly sink their money into ventures backed by worthless patents? Greg, a venture capitalist, sure thinks so. That sound you hear is Greg pissing on the heads of his colleagues who think patents might mean something. Greg likes companies that make products. What an original thought.

5) Patent trolls (again... it's like the patent fool's calling card) - "Patent trolls are buying up dubious IP, then suing companies actually engaged in productive activities, such as building products and serving customers." Is that why Acacia is raking in the licensing dough hand over fist, time and again, through "dubious IP"? Apparently, Greg has no concept of patent economics.

6) Judges are morons. "Wasteful court cases, like the recent BlackBerry imbroglio, occur because patents are granted for narrow, redundant concepts that courts find difficult to unravel, and so are open to interpretation." You can read some of the stupid things the courts write, right here in the Patent Prospector, or you can be smart and watch reruns of Gilligan's Island, like Greg.

7) Patents should be for ideas. "At AT&T, we took old microwave patents and filed identical claims on optical inventions, which are also radio waves, only 10,000 times smaller. We were able to do this even though it was obvious to anyone who ever picked up a physics textbook that once you have the ability to make things smaller, the physics just translates over." Greg wants patents to be only for wowie-zowie invention. 35 U.S.C. § 101, with its puny "useful improvement thereof", just isn't big enough. While complaining that most patents are worthless because they are useless, Greg ignores the practicality of requiring a useful application for a patent. And, never having heard of the non-obviousness clause of 35 U.S.C. § 103(a), Greg laments that the patent office "should reject applications for ideas anyone well versed in the art would automatically develop, once faced with that problem."

Never one to be concerned with consistency, Greg then goes on to suggest making patents even more expensive, and turn patent prosecution into a brawl, through open-ended ex parte sniping. You know, make the patent examination process wowie-zowie.

Satisfied with his bitching, Greg then retreats into his own patent fantasy world about how wonderful it would be if we all would just patent the Greg Blonder way. - "A patent is a license to exclude others from practicing your invention, but businesses need freedom to operate. A broad patent would repel competitors from blocking its value with trivial variations. Instead of applying for 10 minor patents, inventors would apply for just one of true economic value. The flow of information surrounding invention would accelerate -- and so would innovation."

And of course, following the Greg Blonder patent regime as a shining example, creating a virtual patent Shangri-la, America would have patent hegemony. - "In such a scenario, America would become the gold standard for patents. Other countries might continue the practice of patenting the hair-splitting and trivial. But as it became clear that a U.S. patent was the strongest in the world -- the one that attracts capital -- the discipline would win worldwide recognition." God bless America.

Posted by Patent Hawk at December 21, 2005 12:56 AM | The Patent System

Comments

I'll just quote straight from Right to Create (http://righttocreate.blogspot.com/):

"The striking thing is, this editorial wasn't written by some crank. This is Greg Blonder, who lead research at AT&T, has 70 patents to his name, and is now involved in funding startups through venture capital. What does someone with his experience think of the current state of affairs with our patent system? He thinks that there is a serious problem with patent quality, even admitting that most of his 70 patents shouldn't be protected by government granted monopoly."

The comment section in this BusinessWeek article is filled with, essentially, "Amen, brother!"s.

It seems public opinion agrees with Blonder more than it does with your professional 'BeavisWeek' commentary.

Posted by: joey5 at December 21, 2005 7:28 AM

The Blonder's article is pro-patent, however,
not anti-patent, as some people elsewhere suggested...

I am all for raising the bar on patent un-obviousness for everybody, including those
big high-tech corporations whining the most about bad patents enforced against them.
But this would mean, among other things, that MicroShit ,for example, will NOT be able to obtain
1000's of junk patents a year, maybe just 10-20 patents a year at best.
Guess what they would choose: to raise the bar for everybody while getting rid of most of the frivolous lawsuits OR to keep the current status quo while being sued all the time by small litigants a.k.a. "patent trolls"

My guess is the latter rather than the former.

Those big corporate guys are not just IP thiefs,
they are also liars and hypocrites.

They want to have their cake and eat it too...
Sorry big guys, patent system is the same for everybody: big corps, small inventors, patent trolls ...

Posted by: small guy at December 21, 2005 10:07 AM

Greg Blonder’s presumed credibility makes his propaganda piece all the more contemptible. No doubt his appeal to patriotism and rubbishing the status quo are popular with the masses who don’t understand patents and/or retain an adolescent need to rebel towards some idealistic but impractical cause.

Posted by: Patent Hawk at December 21, 2005 10:35 AM

Patent Hawk, I just have to point out two things about your (above) comment:

1. Your apparent disdain for "the masses" is somewhat frightening. Usually, those who fear "the masses" also subscribe to anti-democratic ideals, such as those espoused by totalitarian regimes. "The masses" are too dumb to vote. "The masses" are not informed enough to have rights. Etc. I'm sure this isn't what you were trying to portray (right?).

2) Apparently, anyone who disagrees with your views is "adolescent." Either that, or they aren't smart enough to "understand patents" (see #1 above).

Why not just address the issues instead -- why is Blonder's credibility in question for you? Is there some conspiracy by Microsoft where Bill Gates has kidnapped his children and will only release them if he renounces the majority of his 70 patents and writes an editorial about how patents kill innovation for all the world to see? Or maybe Blonder is lying about his storied career of invention and research?

To me, the explanation is much simpler: Blonder is simply pointing out what *many* people familiar with the patent system have been saying for years: it's broken. Terribly, terribly broken.

Posted by: joey5 at December 21, 2005 1:51 PM

small guy said: "My guess is the latter rather than the former."

My guess is the opposite. Most large companies, even Microsoft, hold HUGE patent portfolios, yes. But [at least in the software industry] they have traditionally been reluctant to use them offensively. Those patent arsenals instead are built as defensive weapons, useful only as counter-suit fodder when a competitor threatens infringement suits for one of their own patents.

In that light, Microsoft's huge patent portfolio, all the lawyers they hire to support it, the hours their developers spend feeding information into the system, and all the fees they pay to the USPTO amount to nothing but a simple tax on production. They *have* to file for lots of patents, not because they will enforce them, but because if they don't then their competitors will enforce theirs on them.

While we're on the topic of Microsoft, I came across this Steve Ballmer video classic yesterday. I thought you might enjoy it: http://video.google.com/videoplay?docid=1465900739197875247

Posted by: joey5 at December 21, 2005 1:57 PM

Yeah, Steve Ballmer somehow reminds me of Dennis Kozlowski, and as far as I am concerned they are both fat and deceitful corporate pigs...

And, by the way, your guess is wrong: I know it from my personal experience with those big guys.
They inflate the patent system on purpose - one of the intended side-effects is diminishing the value of a small number of really breakthrough patents owned by small entities.

Posted by: small guy at December 21, 2005 6:23 PM