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Counter to Slashdot, WSJ has been pushing patent reform for years

By Lawrence B. Ebert, Esq.

On 15 July 2008, Slashdot (one kdawson) had a post titled: MSM Noticing That Patent Gridlock Stunts Innovation, which includes text--> that most traditional of mainstream media, the Wall Street Journal, arguing the point (obvious to this community for a decade) that the US patent system costs more than the value it delivers. [Yes, MSM = mainstream media]

Ironically, and humorously, the post is in the department titled we-could-have-told-you-and-did dept.. One of the many issues in patent reform has arisen from the unwillingness of some in the IT area to write down what they have done, and, more importantly, to read what others have written down. The kdawson post seriously neglects the PAST positions of the WSJ on patent reform, and thus becomes another piece of evidence of the unwillingness of some in the IT community to understand what has already happened.

For example, on 7 June 2006, IPBiz had a post titled Patent Reform and its Discontents, which included the text:

The following letter had been sent to the Wall Street Journal on March 2, 2006, but not published:

The editorial "Patently Absurd" (A14, March 1, 2006) depicts an out-of-control Patent Office approving almost 90% of submitted applications and a powerless court system constrained by a "clear and convincing evidence" standard. In reality, patent grant rates have been steadily declining since 1999, when the rate was 70.8%; the rate was 62.5% in 2004. Efforts to fashion adjusted patent grant rates, initiated by Quillen and Webster and later relied upon by Jaffe and Lerner, have been shown to be flawed on both numerical and legal bases. If there were indeed a tide of questionable patents, the court system would readily invalidate them over prior work, under any evidentiary standard. Studies by Lunney have shown that invalidation of patent claims by the court system has declined over the last twenty years. In situations wherein there is published prior work, either dead-on to the later work or rendering the later work obvious, the procedure of re-examination is available to invalidate claims on a preponderance of evidence standard. The patents asserted against RIM, Microsoft, and eBay have been placed in the re-examination process. The patent system is about disclosure of inventions that meet the requirements of patent law, which disclosure increases the public knowledge base. It is up to businessmen to innovate, with attention to the disclosed knowledge. People who disregard public disclosures may suffer, but ignoring the work of others should be made perilous so that society can operate efficiently. (end of letter)

Also in the 2006 post:

However, it is becoming increasingly clear that the business community does not want to hear about its role in the problems: the failure to conduct negotiations that, if implemented, would decrease the involvement of the court system in the market and the failure to treat the patent system seriously (the RIM case being a notable example of something that could have turned out differently, but for some bad decisions on the front end).

Although one can certainly point to many sound byte examples of bad patents (which largely have been eliminated through re-exam), it is a sad day when the Wall Street Journal and the eBay brief rely on false figures of patent approval rates to advance their arguments.

See also:

http://ipbiz.blogspot.com/2007/06/comments-of-wall-street-journal-on-itc.html

http://ipbiz.blogspot.com/2007/07/piracy-of-brababy-wall-street-journal.html

http://ipbiz.blogspot.com/2007/07/wall-street-journal-on-judiciary.html

Full post as published by IPBiz on July 16, 2008 (boomark / email).