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Patent reform 2008 as a house of mirrors?

By Lawrence B. Ebert, Esq.

The words could describe intellectual property professors in 2008:

Ah, we used to meet for strategy sessions at the University Club --and we were like ten guys in a house of mirrors entrancing each other. We satisfied each other with how smart we were...

No, not about a MENSA get together, but the words described another group of advisors to a lost cause. Unlike "patent reform 2008" (S. 1145), that cause at least got a vote, and later was redeemed. How will patent reform 2009 do?

Looking at the residue of "patent reform 2008," one sees that the Coalition for Patent Fairness was interested in apportionment of damages, and not much else. The "patent quality" problem was so much eye-wash, a predicate prop to the reform
two-step: there are tons of bad patents which lead to bad damages. SO --> Let's apportion damages. BUT, if we don't apportion damages, forget about that stuff about fixing bad patents. We didn't really care about that part.

Mike at TechDirt missed the point of Jon Dudas on bad applications. Dudas never said that bad applications turned into bad patents (bad patents were the issue of Jaffe/Lerner and of Quillen/Webster). Dudas in fact said the opposite, that quality of issued patents was quite good. Dudas was arguing that there were (recently) lots of bad applications, and the USPTO was rejecting them. Dudas (obliquely) indicated that the bad applications were the fault of big companies, who were trying to accumulate lots of patents. Dudas mentioned the toilet queue patent of IBM, tho he didn't mention IBM by name. In linking Dudas and Jaffe/Lerner, Mike Masnick demonstrated he did not understand what was going on.

The actions of the Coalition for Patent Fairness are consistent with this model. Many members thereof never really cared about "patent quality" because they are among the biggest abusers of poor quality applications and of repeated continuing applications. They were concerned about apportionment of damages as it impacted their status as DEFENDANTS in patent litigation. When that issue could not be resolved, it turned out that the other issues were not so important after all. This should be remembered in 2009.

Full post as published by IPBiz on April 25, 2008 (boomark / email).