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June 4, 2013

Patent Police State

The gross incompetence of the USPTO in years past continues to come a cropper. 35 U.S.C. ยง 271 states "whoever without authority makes, uses, offers to sell, or sells any patented invention...  infringes the patent." The natural capitalist response has been for companies to buy patents to assert against makers, sellers, and, at the extreme, users, to extort licenses. Perfectly legal. But big business has been in an uproar about ceaseless assertions. Now the President has stepped in to confront the law and put the plutocracy on firmer footing. Law & order only go so far. Fuck the law. And that's an order.

The New York Times reports that more than half of the 4,000 patent suits file last year were trollish. The 2011 America Invents Act (AIA), a law intended to pervert basic legal rights, has backfired. The AIA made it illegal to sue many defendants in a single suit. The result: a gross duplication of lawsuits, which only cost $350 a throw to file.

The corrupt federal courts, from district level to the Supremes, have long biased their rulings to protect companies. This has become increasingly apparent in recent years with burgeoning case law that is self-contradictory, and appeals court rulings that are fractious. Each year, Federal courts steal billions of dollars away from legitimate inventors, shoveling patents into the public domain as an erstwhile corporate subsidy.

Now the administration has blundered in. In an inscrutable oxymoron, President Obama let fly several executive orders "to protect innovators from frivolous litigation." Obama ordered the PTO to tighten scrutiny. In other orders, Obama aims to protect businesses who buy patented products, which practically covers anything with any technological sophistication, including most everything that is electronic.

Obama's strident orders have created corporate concerns. Microsoft has expressed dismay at some of the proposals, as have others.

States are helping out by passing laws that expressly let companies sued for patent infringement bite back with their own law suits. Never mind that patents are under federal jurisdiction. Politicians at every level corrupt legal rights to vie for the favor of moneyed interests.

The cost of defense against patent infringement is enormous; not uncommonly, several million dollars. You get all the justice you can pay for, and small companies can hardly afford the ticket.

The problem is that there is no low-cost mechanism to counter an assertion of infringement. Patent reexamination is the cheapest path, but that can easily cost up to $100,000 per patent, and the courts are reluctant to stop the litigation train once it gets going.

The best solution would be to abolish patents. In the large, the system does not encourage innovation. Individual inventors cannot enforce their patent rights before the corrupt courts. Companies steal new technologies as they please with judicial support.

The problem with abolishment, besides putting a lot of lawyers out of work, is that foreign companies could outcompete domestic companies. Which is why the plutocratic government here is abusing the law to keep patents in the corporate quiver, while eviscerating patent rights for everyone else.

Posted by Patent Hawk at June 4, 2013 8:18 PM | The Patent System