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March 3, 2009


Vital legislation was introduced today in Congress - in the Senate, sponsored by Senators Leahy, and Hatch, along with hangers-on for hand-outs Schumer, Crapo, Whitehouse, Risch, and Gillibrand: the "Patent Reform Act of 2009." The legislation is vital to keep funds flowing into the coffers of Senators and Representatives, who have a lifestyle to maintain to which they have become accustomed.

This is the first time such legislation has been introduced since the last time, namely, the last session of Congress. That does not include the session before that, and the session before that. As they say in the fashion world, what's old is new.

But that does not mean this new-old newness has worn off. There is excitement in the air about lobbyists divesting themselves of large sums in what will prove yet another futile gesture. Otherwise, those funds might be spent in respect of intellectual property, and we can't have that.

Google, for example, is tickled pink. Michelle Lee, Google's patent head, who posits the disturbing notion that this is not the best of all possible worlds:

Of the 20 patent lawsuits filed against Google since late 2007, all but two have been filed by plaintiffs who don't make or sell any real product or service -- in other words, by non-practicing entities or "patent trolls." Most of these cases seem to feature the same small set of contingent fee plaintiff's lawyers asserting patent claims against the same small set of companies. We've also noticed a more disturbing trend: in many of these cases, the patents being asserted against us are owned by -- and in a surprising number of cases, are even "invented" by -- patent lawyers themselves.

The travesty is obvious. As the law clearly does not require that inventors practice their inventions, like busting bricks in prison where they belong, the law must be changed.

And these contingent fee lawyers, who make possible inventors defending their intellectual property rights - that must be stopped. This whole contingent fee business reeks of ambulance chasers.

Finally, that patent attorneys themselves would be so creative as to invent - it's not only unseemly, but clearly these attorneys were scofflaws at law school, which is designed to, and usually does, numb the mind to any such innovative sparks.

Unfortunately, the temptations and opportunities for abuse have gotten too high. Lawyers and plaintiffs have seen the potentially huge payoffs available in patent litigation. Before 1990, there had been just one patent damage award of over $100 million. Since 1990, there have been at least 15, with at least five topping $500 million.

That's the damn shame with economic growth and competitive capitalism - technological innovation becomes more valuable. Fortunately, that cycle is now being corrected, as the world economy has plummeted into an abyss of depression, caused by competitive capitalism and abjectly negligent government oversight, including some of the same Congress people who stay busy lining their pockets with lobbyist lucre on patent legislation.

But that does not mean that still highly profitable corporations should not hoard their cash reserves and minimize the cost of infringement by trying to gut patent enforcement.

That's why I'm excited that patent reform legislation is slated to be reintroduced today by Senators Patrick Leahy and Orrin Hatch and Representatives John Conyers and Lamar Smith. Once a driver of creativity, our patent system now poses a hurdle for innovation. All too often, Google and other companies face mounting legal costs to defend against questionable patent claims from speculators gaming the system to reap windfall profits. And those lawsuits make it more difficult and costly to introduce the next revolutionary product.

Gaming the system to reap windfall profits should remain the deserved province of large corporations, who struggled to trample others on their way to the top. To stay in practice, it's crucial to keep stomping the upstarts, especially those creative types.

Remember Google's motto: "Do no evil." See, it's all copasetic. The good guys.

For marketing purposes, someone may have missed a beat. With Charles Darwin's birth date 200 years ago, and the theory of evolution, survival of the fittest, 150 years old this year, this bill could be marketed as "The Darwinian Patent Act of 2009." But then again, maybe not. In this country, only Godless heathens and pointy-head intellectuals believe in evolution. That's only about 15% of Americans. Truth in advertising in the Patent Act could make more people pay attention to it than what Congress intends.

Posted by Patent Hawk at March 3, 2009 2:32 PM | The Patent System


I have my disagreements with the Hawk from time to time. But on this posting, you're dead on.

Lets just hope that Congress continues to line its pockets for years to come, without ever actually passing the Patent Deform Act.

Posted by: Defector at March 3, 2009 4:30 PM

Senator Gillibrand - that SUCKS - she wasnt event elected to the Senate. I guess she's raising $$$$$ for her re-election bid.
Still think this disaster can be prevented ???
And how come NOBODY talks about the fact that this is supported by Citigroup and the bankers????

Posted by: anonymousAgent at March 3, 2009 4:35 PM

I'm all for passing vital legislation. I'll take your word for it being vital hawk.

Posted by: 6000 at March 3, 2009 4:54 PM

This isn't really news until something actually happens with it... every bill in congress regarding the patent system has failed. I don't expect this one to be any different.

Posted by: Patent and Trademark Attorney at March 4, 2009 9:29 AM

hawk, there may be some independent inventor types. but there are also true patent trolls, who are basically lawyers who get their hands on a patent, and assert it far broadly than was even considered during prosecution so it reads on a whole industry, then shake down the large companies for settlements. please consider that this does happen very often.

Posted by: joe at March 4, 2009 3:03 PM


Thanks for the comment.

Patent trolls, as you define them, "happen very often." I don't have figures on that.

But so what. I get calls all the time of inventors/holding companies/corporations asserting junk patents. Why point the finger at one particular set of patent holder?

Posted by: Patent Hawk at March 4, 2009 3:19 PM

"Reps Manzullo (R-IL) and Michaud (D-ME) issued a joint press release titled 'New patent bill encourages IP theft, destroys American jobs.'"

Reps Manzullo and Michaud are my new heroes. That at least some Democrats, along with Republicans, see the potential problems with this new version of so-called "patent law reform" as potentially costing American jobs and undercutting American global competitiveness is fair warning that this bill benefits the corporate Goliaths, not the innovative Davids. The corporate Goliaths certainly aren't going to create the jobs needed to bring American out of the current recession, but are (at least those in the banking and financial services world that created this mess) instead simply "sucking" money out of the so-called "stimulus" packages passed by the same Congressional characters who are supporting this new version of so-called "patent law reform."

Again, look at who is supporting this bill, the Coalition for Patent Fairness, a truly oxymoronic title for an organization that could care less if America's patent system goes down the toilet. CFPR, which whines continually about how the current American patent system is stacked against it, isn't going to create American jobs, but will simply increase the dominant position of the large computer/IT companies (who will continually cut American jobs). Also, could it be that these Congressional characters supporting this new version of so-called "patent law reform" pocketed funds from the Coalition for Patent Fairness? Again, this new version of so-called "patent law reform" will simply stamp out the Davids of Innovation, and with it the hope for job creation and global competitiveness in America. Anyone who believes otherwise is living in a dream world.

Posted by: EG at March 5, 2009 6:32 AM

I agree with the Hawk on this. Better to get money from hacks about the patent system than hacks about gun rights. Congress learned its lesson on the poison pill. Leave the guns alone. It ain't worth the lobby money you get when you're voted out of office. It is a safer bet to milk the corporations for lobby money on such an innocous issue that the public does care about.

Posted by: Me at March 5, 2009 8:49 AM

"..such an innocous issue that the public does care about."

Public should care about trashing US Constitution - that's what this "reform" is all about

of course, trashing US constitution happens too often nowadays so everybody gets used to it

The Founding Fathers are rolling in their graves, over and over again...

Posted by: angry dude at March 5, 2009 11:28 AM