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May 18, 2008

Conflict and Cooperation

Culture and law intersect at the personal level. Everybody lives in the two worlds simultaneously. But lawyers often behave as if there is no world but law.

This was not a mistake made by the Founding Fathers of this nation. To be fair to us today, except for one day in September of 2001, we have not had much visceral experience with how conflicts between culture and law may result in violence. But the Founding Fathers lived much of their lives in such conflict. And their fathers had lived much of their lives in conflict (that between church and state).

And how did the Founding Fathers choose to act when faced with the question of how man should be governed? I submit that their answer was to build a government that required people to cooperate. Our systems of checks and balances are so valuable not for their salutary effect on law, but for their salutary effect on culture. To give but one example, freedom of speech has not helped us by permitting a man to say what he likes; rather, it has helped by forcing a man to listen to what he hates.

It is the cultural norm of cooperation that forms our constitution, both literally and figuratively. It is the cultural norm of cooperation that has permitted the United States to grow and prosper to a scale beyond all nations in the history of mankind. It is the cultural norm of cooperation that is most threatened at times when we choose sides, commit ourselves to theories, and refuse to listen and see facts that might lead us to change our theories, and later our actions.

Among many others in this once great nation, the culture of patent law has devolved into a norm of conflict because of a great misunderstanding about what intellectual property is. In the spirit of cooperation that helped forge our constitution, let us learn to cooperate in promoting the progress of science and the useful arts by granting to authors and inventors fair value for their work. There has never been a time in our history in which the fate of patent law has been more in question.

Posted by Michael Martin at May 18, 2008 1:47 PM | The Patent System


This entry is an academic simplification, a triumph of abstraction over facts on the ground.

The constitution is a conflicted document, as evidenced by its history. The overarching picture is that the constitution formed the basis for this nation as being under the rule of law, not monarchy. Beyond that, the constitution was a hash, as over two centuries of constitutional jurisprudence testifies.

The rule of law is as much illusion as reality. The United States is a police state, as are all countries, to various degrees of disguise. The vast majority of those arrested know firsthand that only the naïve believe "innocent until proven guilty." The state looks after itself first and foremost. To argue to the contrary is nothing more than a statement of ignorance of history. Those who serve the state do so for their own perceived advantage, at the risk of being chomped on by the very beast they serve. War veteran treatment is exemplary.

In striving for self interest, humans live in constant conflict. Patents are exemplary. Patent litigation is a show of the two sides seeing what they can get away with. A benefit/cost analysis of projected litigation cost versus license payout transpires. It is common for patent holders to not bother with sufficient due diligence, giddy for a payday. Nuisance suits are not uncommon in patent law, as in other areas. Defendants are forced into exploration: killing the patent and/or evading infringement accusation. Patent suits settle 97% of the time, once the prospective outcome clarifies. Those cases that go to trial are most often acts of denial. NTP v. RIM is exemplary. Closely-fought patent cases are rare, the caprice of the court aside.

The fate of patent law is not in question, nor is the state of patent enforcement at a nadir. There has been at least one other period in history where patent enforcement has been on jagged rocks, into the early 1800s (prior to the 1836 Patent Act).

The antics of the Coalition for Patent Fairness have created an impression of turbulence, but, so far, done not much more than expose stupidity, cupidity, and corruption in Congress, which we all were shocked, just shocked, to discover even existed. ;-) Well, the Republican-dominated courts have soured the patent scene somewhat as an outgrowth, but that is best considered an adjustment, not a decimation. Even KSR, which went too far, has met a somewhat tempered reception, and perhaps has kept a few patent worms from crawling out of the woodwork.

The single biggest dilemma in the patent scene today is the astonishing incompetence of USPTO management, proving once again that the difference between reality and fiction is that fiction has to be believable. That horrid hiccup, consistent with the Bush legacy, hopefully ends soon.

Posted by: Patent Hawk at May 18, 2008 3:00 PM


I don't disagree with all of your observations about how things are now -- we have problems, no doubt.

But I do disagree that there is no alternative. You say that "Those who serve the state do so for their own perceived advantage, at the risk of being chomped on by the very beast they serve." That is less true here thanks to the cultural norms fostered by our constitution than it is in many other parts of the world, such as Papua New Guinea:


It's up to us in each new generation to decide what kind of culture we want to live in.

When Ben Franklin walked out of the Constitutional Convention, a woman stopped him to ask, "What kind of government did you give us?"

His response: "A republic, if you can keep it."

There is no immutable reason for there to be so much patent litigation.


Posted by: Michael F. Martin at May 18, 2008 3:18 PM

The immutable existence of conflict is intrinsic to human nature: cool rationality sits in the back seat while self-interest drives and emotion rides shotgun.

The settlement rate for patent suits instructs that it is better to think of patent litigation as court-sanctioned discovery than aggressive conflict.

Posted by: Patent Hawk at May 18, 2008 7:26 PM

I wish I were as optimistic as you.
I agree that in recent years, the patent system has been weakened but not gutted, and that patents today are still quite valuable.
My biggest concern is that the CPF could have gotten EVERYTHING this year except for the damage clause but HELD OUT (even rejecting some sort of compromise on damages that would have devalued patents somewhat but not completely).
What's to stop the CPF from ramming something EVEN WORSE through Congress next year after they take congress in a landslide over the Republicans (I know the "Reform" bill was "bipartisan" and opposition was bipartisan, but the bill was supported more by Democrats useful idiots than Republican bribe-takers) ???
The last time I checked, the CPF bank accounts just keep getting bigger and bigger.
How can we organize to stop this before it happens????
Also, I see the press' anti-patent drumbeat is not abating.

Posted by: anonymoustAgent at May 18, 2008 9:55 PM


Because inventors are the ones that stand to lose the most from a weakened patent system over the short-run, the place to look for opposition to the large corporations that are looking to weaken patents (paradoxically in an effort to reduce litigation costs) is the largest employer of inventors. Since Bayh-Dole, that is UNIVERSITIES.

If only the managers of large corporations understood economics well enough to realize that STRENGTHENING patents would be the best way to reduce litigation expenses (and so probably reduce patent-expenses overall). If more technology were being transferred rather than ripped off or wasted, large corporations would be growing just as fast as they were when R&D was vertically integrated before Bayh-Dole.

Posted by: Michael F. Martin at May 19, 2008 1:16 AM