« In the Wind | Main | Corrected Vision »

April 29, 2009

Con Man

Sen. Patrick Leahy (D-Vt), Senate Judiciary Chairman, attempts to sew a silk purse from a sow's ear with proposed patent legislation, disingenuously spinning in Business Week that it gives "ingenuity freer rein." "It has been more than 50 years since Congress significantly updated the patent system." In truth, Leahy wants to go backwards, before the 1946 Patent Act, when apportionment of damages was so wrecking the patent system that the Patent Commissioner at the time called it "one of the sorest spots in the enforcement of the law in the United States."

Rep. Dana Rohrabacher (R-Calif.) retorts:

Contrary to its title, the patent legislation now going through the Senate is not reform, but instead changes the law to benefit a narrow sector of the electronics industry, and trial lawyers. It does not maintain protection for the innovators and inventors but instead undermines their position against foreign and domestic infringers.

The legislation... dramatically elongates the process of obtaining clear-cut patent rights. It would open up the opportunity for deep-pocketed corporations to challenge a patent even after it has been issued. This never-ending process obviously helps the big guy by making the little guy much more vulnerable. It makes the system even more complicated and even more expensive than it now is.

Large electronics and foreign corporations will be better able to thwart inventors trying to establish and enforce their patent rights, a boon to the infringers and thieves and a disaster for individual inventors and small companies, as well as the universities and the pharmaceutical and the biotech industries.

Posted by Patent Hawk at April 29, 2009 7:53 PM | The Patent System


Mr Rohrabacher seems to be against any post-issue scrutiny of validity. You seem to be against compensation level damages with the patheticaly lame line that "We tried that once, a long time ago. It didn't work then, so it won't work now". So, you think that the best thing for the future prosperity of the United States is a plague of individual "inventors", with claims that are well, actually, invalid, but rendered irrational by the promise of unlimited $$$, roaming the land and implementing their Government-issue "Licence to Kill" certificates against every hard-working employer in their path. Is that what will restore the USA to its world leadership role?

Or would you Ebay them all, ie draw the teeth that characterize a properly working patent system?

Why don't you instead set up a system that enjoins rapidly, but also settles the validity issue just as quickly, cleanly and definitively? You know, even that might now be possible, if Team BO really wants to get there. Other countries (England) can do it. Why not also the USA?

Posted by: MaxDrei at April 29, 2009 10:39 PM

Hi Max:

You read black-and-white to a shade-of-gray situation.

The USPTO is unable to timely reexam patents. Litigation vets them well, though at a cost.

There is no simple, quick, cheap solution that is equitable to inventors.

Never forget that the US patent office created the mess, and they are unable to clean it up.

The system is not broken, but does need some repair. But what Leahy proposes is not repair. What Leahy offers is as Rohrabacher characterizes.

Posted by: Patent Hawk at April 29, 2009 11:20 PM

I take issue with your statement "There is no simple, quick, cheap solution that is equitable to inventors". Many in England would disagree with you,The complexity you cherish adds nothing to equity. That's a myth. What makes you so certain of yourself? Isn't it a matter of national honour that Americans should have access to simple, quick and equitable justice (or at least no less simple, quick and equitable than inventors enjoy in lesser countries like Germany?). You could begin by adopting the simple and robust validity provisions of the EPC. At a stroke, that would strip lawyers of most of their work in any US patent litigation, with no loss of equity. There is no "repair" measure that can do what that single measure would do for inventors in the USA.

Posted by: MaxDrei at April 30, 2009 2:52 AM

I'll try to re-post here what I uploaded into the Bu Week comment funnel. (No way of knowing whether the comment "moderators" at BuWeek will let radical thought through.) To understand, one must read Senator Leahy's position paper first:

There is a difference between real debate and resort to mind twisting rhetoric.

Senator Leahy's position paper is all of the latter and far from any semblance to truth telling.

Congress has significantly amended the patent laws many times since 1952. So there lies a first of many serious distortions in Leahy's regurgitation of corporate talk points.

Like tort "reform", patent "reform" seeks to let wrongdoers go free. It's all about stripping the little guy of last rights and giving the monopolistic members of the so-called "Coalition" for "Fairness (and Balanceness)" total reign over the technology sector.

Innovation is a code word for depriving individual inventors of all chance for success. Quality and efficiency are trick words for making sure that the new Global Oligarchy reigns supreme even over what used to be the home of the brave and the land of the free.

Congressman Rohrabacher tries pleadingly above [in his position paper] to speak truth against global power. But what chance does a single Congressman have against the K Street contortionists? So-called "reform" is merely a morally bankrupt and hideous deform in this case. The system is "broken" alright. We have inherited the best Senate that that global money can buy.

Posted by: step back at April 30, 2009 2:59 AM

"Many in England would disagree with you..."

With all due respect Max, who cares what people in England think?

"with claims that are well, actually, invalid"

Excuse me Max, but that's the point. The claims are presumed valid. No plaintiff or plaintiff's attorney worth their salt is going to threaten litigation over claims that don't pass the straight face test. If I was in-house counsel for a company like, say, Cisco, I would carefully examine every patent assertion play that was made against my company. If someone tried to push a crappy claim on me, I would send them what I considered to be the invalidating prior art and let them decide if they want to take me to the dance after that. If they do, then it is not going to take a lot of my resources to send them home with their tail between their legs and a fat invoice from their attorney. That rare instance is hardly justification for dismantling the greatest patent system in the world.

"Is that what will restore the USA to its world leadership role?"

Excuse me Max, but you've been watching too much CNN.

I have a feeling you are not the naive European pansy that you make yourself out to be. I think you are one of the anti-patent puppets from PatentlyO.

Posted by: Just sayin' at April 30, 2009 5:22 AM

And let me be clear about my example, if I was Chief Patent Counsel for large company, I would not whine about trolls, set up a blog, and attempt to engage in subterfuge to undermine parties in ongoing legal cases. I would do the hard work of determining the merits of the cases that were filed against me and proceed accordingly.

Please read and re-read step back's post above for a more clear picture of what is going on the world. The swine flu is the worst kind of Red Herring: not only does it take the collective attention off of America's slide toward socialism under the Obama Administration and his host of idiots like Napolitano, but it is yet another excuse for big government and world government to try to push people around and flex its muscles.

Posted by: Just sayin' at April 30, 2009 5:28 AM

Just sayin' is just about right.

The puppet show has lost a lot of its entertainment value.

Although there may still be a place for the puppets to posit their foils, the lack of critical response to ideas put forth (e.g. the presumption of validity is critical to patents and the conflating of the issue of proper examination (STILL the real issue and proper focus of energy) with the desire to wreck the power of a patent) is simply noise, makes continual responding to the puppet assertions, well... just not worth the time to type.

Posted by: Noise above Law at April 30, 2009 5:37 AM

Max, dude, you are starting to get annoying with your attacks on America's independent inventors
Things are invented by people, not by corporations

I'm all for replacing huge damage awards with swift court-ordered injunctions
Remember Max, we don't have injunctions anymore (unless you are a large manufacturer in direct market competition with patent infringer)
Give us back injunctions for small patent holders and no true inventor wull complain about reduced damages
AS far as I am concerned all infringers can go to hell, I don't need their money, just stop using my patented invention without my permission
(Garbage about independent invention does not fly in most cases)
There has to be some punitive measure to prevent outright stealing of other's property

Posted by: angry dude at April 30, 2009 6:01 AM

"America's slide towards socialism"

Excuse me Just Sayin', but you've been watching too much Fox.

I for one thought I believed in a strong patent system, but apparently party affiliation is the sine qua non.

Posted by: anon at April 30, 2009 7:17 AM

Excuse me anon, but are you saying that you are a socialist? Most Democrats or CNN watchers don't really know that they are socialists or even how to identify a socialist or why socialism is not so desirable. Some people might think its cute or hip or funny or rebellious to say that they are socialists until the American dream slides into the toilet and nobody has a job.

That's real funny.

Posted by: Just sayin' at May 6, 2009 5:27 PM