March 16, 2009
"Patents are not ordinary assets; they are options to litigate. While patent lawyers and other intermediaries benefit directly from the scope and scale of IT patents, that volume represents potential liability for companies that market useful products. Most patents belong to others, and the sheer volume obscures the patent landscape, limits the ability to evaluate patents and inevitably leads to inadvertent infringement." - lobbyist Ed Black of the Computer and Communications Industry Association, in the Silicon Valley Mercury News.
Let's examine Ed's foregoing statement. "The sheer volume obscures the patent landscape." Untrue. Patent Hawk provides freedom-to-operate research results for a few thousand dollars in any IT area. The fact is that companies don't go looking. There's a problem. Patents, which could stimulate further innovation, go unappreciated. The IT sector's approach to patents is head-in-the-sand stupid.
Example. Gary Odom invented active tool groups in 2000. His employer, who had Microsoft as a client, didn't want to know about Odom's patents. Odom told Microsoft in 2004 he had patents. Microsoft didn't want to know. So they spent literally hundreds of millions reinventing what Odom had already invented, and would have told them how to do it if only they had been willing to listen. All because Odom had protected his invention with a patent.
Microsoft put the invention in Office 2007. Now they'll fight paying for a license until all appeals are exhausted. Blackberry maker RIM did the same thing against NTP, maximizing its damages by several orders of magnitude. It's the arrogant testosterone talking.
Black noted that "patent litigation is extremely costly." But he didn't say why. The only reason "patents... are options to litigate" is because corporations abide no negotiation without litigation.
Black: "What creates economic value is genuine innovation, not a lottery system for patent applicants." So, to Black, a patent is not a "genuine innovation." "Real innovation requires major investments in design, code, integration, testing, manufacturing and marketing as well." Black equates capital investment to innovation. Only deep-pocket corporations can innovate is what Ed Black is saying.
See if you can make sense of this. Black -
Presently the threshold standard of invention is keyed to what the person of ordinary skill would find obvious. But there is only a limited role for ordinary skill in today's intensely competitive global economy, and American leadership today depends on extraordinary, not ordinary, abilities and achievements. At least in the IT sector, the patent system needs to be recalibrated to support the extraordinary, rather than cranking out options to litigate.
Flag-waving, articulate rubbish. Sounds like Justice Scalia on a verbal bender.
Rhetorical psychotic episodes are truly scary. Erudite authors twist reality, knowing that those less informed will grant credibility to the concepts because the words are so well put. While the fact base is beyond knowing, the logic just slightly beyond grasping, the point is appealing, even compelling, if it somehow rings true. A sense of understanding is a strong need, however false the sense is. Hence folks clinging to..., well, like President Obama said on the campaign stump. Desire to make sense of something often leads, like a junkie getting a fix, to simplification beyond sensibility. Hence Ronald Reagan's abiding popularity. Donn Piatt once said, "There is no tyranny so despotic as that of public opinion among a free people."
Ed Black is a dangerous man. To prove the point, let me graciously give him the last word.
As a tech trade association that represents both patent holders and users, we support the patent reform bill and even wish it went further. Eventually, we must address the need for higher standards, so we don't have the plague of trivial patents obscuring and blocking the use of high-quality technology. The only real solution is to raise the basic standard of what is a patentable invention.
Posted by Patent Hawk at March 16, 2009 12:19 AM | Patents In Business
"So they spent literally hundreds of millions reinventing what Odom had already invented, and would have told them how to do it if only they had been willing to listen. "
Ok hawk, I don't mind that you have a great patent and are asserting it against microsoft in typical troll fashion, but come on man, there's no need to just straight up lie like that. Let me guess, it took you only a couple of minutes thinking about toolbars for the idea to hit you, whereas it took MS years of careful planning, and literally millions of dollars of R&D monies just to figure out "active toolbars" as you call them? You're no Tesla, and active toolbars are no radio, and Tesla probably didn't even really invent the radio even though the SC said so.
"The only reason "patents... are options to litigate" is because corporations abide no negotiation without litigation."
Could that be because most people that approach them to license their patent have invalid/inapplicable patents? Hmmm.
"The only real solution is to raise the basic standard of what is a patentable invention."
About that there can be no doubt. Has nobody been paying attention to history? First we had no obviousness law. Then the courts started seeing silly sht that wasn't anticipated but blatantly was no different than all the elements of the prior art combined by one of ordinary skill. Now the courts are seeing silly sht that isn't quite "obvious" under that standard, but still is nothing more than a combination of elements of the prior art in a blatant function fitting way used to solve some problem. There is nothing new in the claim except for a new use for old things, which is nothing more than routine innovation which happens all the time, and does not warrant a government sponsored "monopoly". In the end we may very well end up joining the ROW.
I do my job day in and day out determining this old obviousness standard, when really it is a relic of yesteryear just as anticipation was in the 30's. No less valid, but not up to speed with the world. Before I die the patentability standard will go up. Significantly. There simply is no other way. For now, measures like KSR might suffice. It may take 50 years for the standard to need to go up again, but it will, mark my words.
Posted by: 6000 at March 16, 2009 4:34 AM
>The only real solution is to raise the basic standard of what is a patentable invention.
And, as 6000 says above, this is likely to happen. But in my experience as (1) a corporate inventor, (2) a member of a corporate patent review committee, and (3) a pro se inventor, an increase in patent quality will toss out a lot more corporate patents than pro se patents.
My take: Perhaps we are seeing the era of dueling corporate patent portfolios come to an end. Like the cold war, the "corporate" strategy of threatening mutual mass destruction doesn't make sense any more in the patent world either.
As a pro se inventor, I would love to have fewer but better patents floating around and for the market to consider each patent on its merits. I don't think that would benefit Mr. Black's constituents.
Mr. Black should be careful what he wishes for.
Posted by: Carl Strathmeyer at March 16, 2009 6:06 AM
Perhaps what Mr. Black wishes for is a patent system so weak that his constituents can plunder at will.
The subtlety of why this would indeed be bad for Mr. Black and his constituents may not be understood until far too late.
Posted by: Breadcrumbs at March 16, 2009 7:34 AM
Thanks for making it clear whose Kool-Aid you drink. Inventors are contemptible trolls to you.
What would be your patent standard, 6000?
An aside: If you want to write "shit," you needn't write "sht" on this blog. Just say what it is you want to say. Occasional use of “shit” as a shorthand expression for something repugnant is not ipso facto offensive, at least to me. I won’t delete such a comment. I accept that words may fail you for a less base and more colorful expression. We live in a land where outrage on bumper stickers is ubiquitous, where popular religion teaches body parts as naughty. Let’s all sink a little lower now, to paraphrase Steely Dan
Posted by: Patent Hawk at March 16, 2009 11:39 AM
"Inventors are contemptible trolls to you. "
Hey man, I would be one if I weren't in the office. Buddies of mine that didn't go down the PO trail are already co inventors on trivial drivel like I look at every day (and a select few on some cool stuff). I have no contempt for them, or my uncle (who has patents), but if they attempt to troll someone then they are certainly stepping on the borderline of "morals" shall we say. My uncle fit this bill to a T back in the day, and only now, 5 years or so later, and after having discussed the system with me a few times, does he see the potential intellectual dishonesty at play. And make no mistake, he's a business man. None the less he sees it. And that, above anything, is what should have active trolls today scared. When people of their own kind start repenting and saying that yes, there's probably something amiss with the system working that way then trouble is on the horizon.
For right now I say let obviousness under KSR work its way through the system for another 5 years at least, then evaluate how things are going. Still, there can be no mistake about it hawk, the only way for the standard to go is up and it will go there, eventually.
I just use sht because I have to on Patentlyo. It's a habit.
"(3) a pro se inventor, an increase in patent quality will toss out a lot more corporate patents than pro se patents."
I agree with that, simply because corporate patent apps are filler with one small thing added half the time.
"I don't think that would benefit Mr. Black's constituents."
Why would it not benefit his constituents?
Posted by: 6000 at March 16, 2009 9:15 PM
"Ed Black is a dangerous man." I agree
Posted by: fish bones at March 17, 2009 12:11 AM
>'"I don't think that would benefit Mr. Black's constituents." Why would it not benefit his constituents?'
In my admittedly narrow experience (in the computing and communications areas), corporate patent portfolios are indeed heavy with "filler with one small thing added". Increasing patent quality would, I believe, disallow corporate patents more often as compared to small inventor entities. It would also, by definition, make it more difficult for corporate entities to squash small-entity patents they found inconvenient.
My thesis is that small entities can play the Quality game better, while corporate entities can play the Quantity game better. If the rules are shifting towards Quality, then the small guys' star is rising. I just wonder why Mr. Black thinks that's in his constituents' interest.
Posted by: Carl Strathmeyer at March 18, 2009 11:36 AM
Another data point indicating a shift in corporate patent portfolio strategy from Quantity to Quality:
Peter Zura, in his 271 Patent Blog, reports that acting USPTO Director John Doll recently said:
"I talked to a large corporation today and they're going through their patent portfolio to see what's core," said Doll, adding that the company could decide to abandon much of its portfolio.
It may be getting too expensive to maintain a portfolio of "filler with one small thing added"!
Posted by: Carl Strathmeyer at March 18, 2009 11:43 AM