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June 15, 2009

Snuffing Candles

Tackling Bilski and patents in general, the Wall Street Journal presents one of the more subtle propaganda pieces seen: "The greatest innovations today are better methods rather than new machines. We shouldn't grant monopolies on concepts." Quoting IBM's David Kappos: "As things now stand, the vagueness of patent law means the 'precious time of skilled scientists and engineers is too often spent defending against costly and time-consuming litigation, instead of creating innovations that drive economic growth.'"

Kappos is disingenuous. "Skilled scientists and engineers" don't defend patent suits. Lawyers do. Kappos skirts the nub of IBM's problem with patents. "Many of the products that consumers demand are complex and include contributions from multiple innovators that incorporate hundreds if not thousands of patented inventions." This "increases the need for predictability and clarity in determining the valid scope of patent rights." What Kappos doesn't say, but surely feels, is that the one patent out of the hundreds it doesn't own for an IBM product aggrieves it terribly to have to pay any "patent tax."

In a twist of "What would Jesus do?," the crowning achievement of the WSJ article is to cast Thomas Jefferson as patent reformer.

Thomas Jefferson, the nation's inventor-president, would support patent reform in an era when new information technologies build on themselves. An idea, he observed, is a rare thing whose value increases as it's shared. "No one possesses the less because everyone possesses the whole of it," he wrote. "He who receives an idea from me receives it without lessening me, as he who lights his candle at mine receives light without darkening me."

Japan became a great industrial power in the 1980s after the FTC forced cut-rate compulsory licensing on hundreds of U.S. companies. From the Invisible Edge:

This forced technology transfer on the part of the government has been labeled by one observer as "the largest 'white sale' on technology in history," a bargain that aggressive Japanese companies took full advantage of. Between 1950 and 1980, Japanese companies consummated more than 35,000 technology license agreements with foreign, mostly U.S., companies, many of which included the free or low-cost licenses made possible by the numerous consent decrees issued by the U.S. FTC and DOJ.

In the 1960s, fresh off its own antitrust suit, IBM carped about Xerox's monopoly in the copier market to the FTC. Xerox was forced to light its "candle at mine," as Jefferson analogized. In 1972, Xerox, by sheer dint of its inventions, had virtually 100% of the market for plain-paper copiers. Four years later, after its obliged FTC consent decree, it had less than 14%. Domestic rivals IBM and Kodak didn't grab the lion's share: Japanese competitors Canon, Toshiba, Sharp, Panasonic, Minolta and Konica did.

The same potential economic damage from short-sightedness applies today. Gut patent protection and watch China rise and dominate the American economy even more than it does now.

The problem with clearly defined patent rights lies not in §101, but in §112 ¶2. The issue of "predictability and clarity in determining the valid scope of patent rights" is not damning processes as unpatentable, but in damning patents that don't clearly define their metes and bounds. Bilski's claimed processes are ill-defined, and so fail under a reasonable interpretation of definiteness. Alas, the CAFC is far too lenient, letting any claim stand under §112 ¶2 as long as something can be made of it.

Process patentability deserves as much credence as any "machine, manufacture, or composition of matter." So said Congress, so says the law, and so said the Supreme Court in Diamond v. Diehr.

Process patents are not the problem. Clarity is. What every claim to any patentable invention needs to be is definite.

Posted by Patent Hawk at June 15, 2009 11:03 AM | § 101

Comments

"...one of the more subtle propaganda pieces seen"

???

You gotta be kidding

from the shitty article:
"The Patent Office now gets some 500 million applications a year..."

???????

"In the Industrial Age, innovation primarily was the result of work by individuals or small groups within an enterprise," explains IBM lawyer David Kappos. "The nature of innovation has changed. Today, we benefit from inventions made possible through highly collaborative and interconnected technologies. Many of the products that consumers demand are complex and include contributions from multiple innovators that incorporate hundreds if not thousands of patented inventions."

From reading this shit one can get an impression that patents are not awarded to one or more individual inventors anymore...

Kappos is full of it as usual

And you want this piece of shit as PTO director ?

Posted by: angry dude at June 15, 2009 11:37 AM

"Alas, the CAFC is far too lenient, letting any claim stand under §112 ¶2 as long as something can be made of it."

Says the man litigating "ahem" valid claims as we speak...

I do agree with you though Hawk that there would be less of an issue with 101 if 112 were properly applied. However, the courts have already taken a stand on that because of the presumption of validity, and it appears they were right to do so. Give up the presumption (at least regarding 112 issues), and fix the system.

Posted by: 6000 at June 15, 2009 11:56 AM

In my opinion, a lot of the problems in the IT industry
stem from implementation of 35 USC 103. I worked in the
IT industry and I can tell you, it is not innovative. It is simply
evolutionary where features are added to existing
software and this becomes next years product. Mostly,
"innovation" in the IT industry is a natural occurrence
of product evolution and is, for the most part, obvious
under KSR. This should help take care of Kappos' problems.

Posted by: James at June 15, 2009 1:25 PM

"Process patentability deserves as much credence as any 'machine, manufacture, or composition of matter.' So said Congress, so says the law, and so said the Supreme Court in Diamond v. Diehr.

Process patents are not the problem. Clarity is. What every claim to any patentable invention needs to be is definite."

Also better searching and examination so that the process claims are not obvious in view of the prior art.

Posted by: John Prosecutor at June 15, 2009 2:20 PM

If the PTO spends the time to properly search and apply 103 and 112, the 101 issues disappear.

Posted by: John Prosecutor at June 15, 2009 2:22 PM

Well written article Hawk... why don't you submit a few of these for publication in, oh I don't know, say the WSJ or at least the letters to the Editor.

Posted by: Just sayin' at June 15, 2009 4:52 PM

Regarding the quote by IBM's David Kappos: "As things now stand, the vagueness of patent law means the 'precious time of skilled scientists and engineers is too often spent defending against costly and time-consuming litigation, instead of creating innovations that drive economic growth.'" get a load of...

http://www.inventionstatistics.com/Duration_of_Patent_Lawsuits_Litigation_Length.html

and..

http://www.inventionstatistics.com/Patent_Lawsuit_Litigation_Settlement_Damage_Awards.html

Posted by: Harry Hopkins at June 15, 2009 11:53 PM