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March 17, 2009

Presumption of Innovation

US patent rights have gone the way of "innocent until proven guilty" as our country plunges headfirst into a deep cavern of morally gray, with a permeating attitude of destruction over creation. The founding principal of making every attempt to protect intellectual property has degraded into making every attempt to control and limit that protection, while completely forgetting "to promote the progress of science and useful arts".

The presumption of innocence was once accepted as a foundation of our nation, with the idea that it is better for a guilty man to go free than for an innocent man to rot. Similarly, when our patent office supported a higher allowance rate, it was thought better for a few crap patents to swing through, than to unjustly limit the property rights of all. But as greed, selfishness, and diminished morality spread like a plague, we suddenly find that fear trumps liberty, that a man is actually guilty until proven innocent, since we ourselves are never the guilty party, and that patent rights are to be controlled and portioned out by the dropper full to those who sing the praise of the "system" and kiss the ass of the man.

In the words of George Jones:

Why can't we see the folly and the uselessness of hate
Love could lead to understanding maybe it's not too late
Then perhaps in His great wisdom we might learn to understand
Then there'd be no shame or sorrow and no selfishness in man

Posted by Mr. Platinum at March 17, 2009 10:06 AM | The Patent System


Bit over the top, don't you think? Feeling low today, are we? Come on, you can't be serious here, surely. I'm disappointed in you.

Posted by: MaxDrei at March 17, 2009 11:46 AM

This is serious business. And we are serious cats. Obviously, what Congress giveth it can take away, but it strikes me as folly to ignore the tortured demise of Article 1 Section 8 Clause 8. Nowhere else does the word "right" appear in the body of the Constitution, and perhaps for good reason.

Posted by: Anonomer at March 17, 2009 3:11 PM

Aww Mr. Platinum, it's not that bad - the PTO isn't trying to issue Inventors' Certificates (for paying your mortgage)... yet.

I think the patent system got to a point (by the late 1990s*) where we were giving away "something for nothing" (swinging) or "something for imagination" (if you can imagine it, you can patent it even if you can't make it) rather than "something for invention". I think some of what we are experiencing is just necessary correction, though some of it is designed by the power brokers to prevent the necessary correction.

*I was literally telling people then that anything could be patented, not because I thought it should be so, but because that was the state of present reality. (I still remember one particular Examiner walking down the halls in Crystal City, crying out "Allow! Allow! Allow!" My how things change, and yet remain the same, don't they?)

Posted by: NIPRA anonymous at March 17, 2009 4:01 PM

we are in the "AGI Age" of patent protection.

"I still remember one particular Examiner walking down the halls in Crystal City, crying out "Allow! Allow! Allow!" -- I am sure that he was scurried away to some unknown location and waterboarded until he was able to say Reject Reject Reject -- (I am not kidding; it was on the last episode of 24) and those liberal do gooders say that torture doesn't work.

Posted by: prefer not to say at March 17, 2009 11:49 PM

maybe they can bundle up wads of patents and published applications, divide them up, give a AAA rating for them and sell them as financial instruments.

their value has gone down the past few years (in view of court rulings and PTO mismanagment) like the stock market or the SoCal housing market

Posted by: still prefer not to say at March 17, 2009 11:54 PM

Agreed Hawk. Let's be serious. A wildly swinging pendulum (from "allow" everything to "reject" everything) is a cause for lamentation, wailing and (particularly) gnashing of teeth, because of the damage it does to confidence in manufacturing industry.

So Congress should find out what causes the swinging, and get rid of the cause.

What was the cause: I offer some ideas:

1. Binding Precedent (we don't do that, in Europe) together with poor judging at appeal court level. Solution: make better judicial appointments.

2. Politicisation, at the PTO. Solution: No idea, as long as the US system has the reputation that it routinely delivers jackpot damages to undeserving patent owners.

I'm an optimist. I expect the pendulum swings to be damped, because the judges learn from their past mistakes, and the PTO then reacts. With Boinding Precedent, however, it just takes a horrible long time to correct their past mistakes.

Posted by: MaxDrei at March 18, 2009 12:20 AM

Max wrote:
2. Politicisation, at the PTO. Solution: No idea, as long as the US system has the reputation that it routinely delivers jackpot damages to undeserving patent owners.
Max - i dont know if you worked in the business world before going into law, but I did. The ONLY ONLY ONLY ONLY way a large moneyed corporation will agree to pay reasonable royalties is if there is a threat of something BEYOND reasonable royalties (i.e. an injunction and/or jackpot damages). If the worst case scenario is 'reasonable royalties,' no large corporation will EVER purchase a LICENSE - they will just elect to ROLL THE DICE in litigation - in the WORST case, they pay what they would have paid in licensing anyhow.

Anything else would be irresponsible to shareholders.

PS - when Microsoft agrees to change the penalty for copyright violation to "paying list price for the software," then I will support their version of patent "reform."

Posted by: anonymousAgent at March 18, 2009 3:15 AM

"So Congress should find out what causes the swinging, and get rid of the cause."

Like nobody here knows, Max.


Unfortunately, Congress is presently more part of the problem than the solution (think Representative Rogan, staffers Dudas and Peterlin).

Posted by: NIPRA anonymous at March 18, 2009 4:52 AM

To those immediately above: I agree that those who fall within the scope of a valid claim of an in force patent should expect to get enjoined, regardless whether the patent owner is working the invention itself. What the CEO has to watch out for, on behalf of his shareholders and employees, is getting enjoined. So, you need 1) a culture of monitoring emerging WO and A publications (companies that don't do it being considered negligent) 2) a Patent Office that really does filter out bad claims, and 3) district court judges competent to decide whether a claim of a biotech or telecoms patent is or is not valid and is or is not infringed. That sure ain't easy, but somebody has to do it (for the PTO to reject more or less everything is not a reasonable solution).

So, you need a stripped down and streamlined Statute (like the EPC) easy enough for a judge to understand, both on validity and infringement. Meanwhile, in the USA, even patent attorneys (those with international experience, I mean) find the ancient creaking US Patent Statute a ragbag steaming pile of fuliginous obfuscation.

Posted by: MaxDrei at March 18, 2009 5:06 AM

For the record, I don't think Hawk posted anywhere so far in this entry.

Posted by: Anon at March 18, 2009 8:17 AM