Patent Law

Too Far

By Gary Odom and Jordan Kuhn

The cheesiest propaganda has a "gee-whiz, this ain't right" flavor. The rubes eat it up. So, whoever bothers to read the oxymoronic Christian Science Monitor is in for a treat. Correspondent James Turner gingerly spews gosh-darn hogwash, aided by an addled Daniel Ravicher, anti-patent kid wonder. "We have too many patents being granted," Danny sings. Apparently, Ravicher hasn't checked the allowance rate in a few years. Or maybe he has, but can't change his religion despite the facts.

Naturally, Turner turns to a goof, 6,368,227, claiming a kid's swing, as the proverbial ax murderer of the patent system.

To critics of the current US Patent and Trademark Office (PTO), this kind of patent demonstrates everything that's wrong with the patent system today.

Turner's shtick is that patents held by corporations are okay, but represent a rocket ride to Hell when free-lance inventors get patents, or when patents are sold.

As long as large corporations held the patents, things remained fairly peaceful. There has always been a kind of uneasy "mutually assured destruction" standoff among giants such as IBM and Microsoft, each holding patents that could be used against the other.

But as certain high-tech firms failed, many of their patents were acquired by intellectual-property holding companies, whose only business was to use these patents to make money. In other cases, independent inventors have patented what some consider blatantly obvious ideas.

Since these so-called "patent trolls" don't produce anything themselves, they have nothing to be countersued over.

Terrible Tommy Edison, 1,073 patents to his name, spins in his grave. His business was using patents to make money.

Turner might care to introduce himself to the concepts of market economics and intellectual property. Or maybe not. Some things are just too scary, too hurtful.

Turner cites a single litigation, where "critics... have found numerous examples they claim represent prior art." How novel.  The lament is that the patent "is now being used to threaten some of the largest corporations in the world with expensive lawsuits." Google, Apple, and Microsoft. Oh, those folks can't afford an expensive lawsuit. They must get the vapors over the prospect of invalidating a patent. The system must be fixed.

Red Hatted Rob Tiller gets in his shot.

We believe that companies that don't make a significant contribution, in terms of innovation, have exploited the existing patent system to play hold-up games with those who are, in effect, innovating in the marketplace.

Red Hat doesn't think patents represent "innovation." Red Hat must consider "innovating in the marketplace" synonymous to making money with second-rate software, because all they sell is an outdated hack, whose only technical progress comprises copying what they've seen Microsoft and Apple do.

The only bright star in the Christian science patent firmament is Peer to Patent.

The pilot program of 400 patents shows some initial success. Of the first 23 applications considered under Peer to Patent, nine were weeded out based on prior-art claims filed through the program.

"Weeded out" is overstatement. First rejection is more like it. And first rejections are ubiquitous. In other words, with citizen-reviewers putting in an average of 6 hours search per application, 39% of those first 23 found something. Turner neglected to mention that the PTO has long accepted third-party prior art submissions. What's more, the P-to-P pilot is unlikely to scale well. Peer to Patent is more political publicity stunt than anything.

If this article is any indication, Christian scientists might like to give patents a good Spanish Inquisition. Patent policeman about to billy-club "missy" for swinging without a patent. Their idea of cute.

Full post as published by The Patent Prospector on March 15, 2009 (boomark / email).