Ranting: Patent Hysteria Over Amazon Patenting Facebook

Mass hysteria seems to have been unleashed on the Internet and directed toward Amazon.com for patenting social networking.  Some of the Internet media have suggested that Amazon has patented Facebook, but it is apparent that virtually no one has read the patent (U.S. Patent No. 7,739,139) past the first sentence of the Abstract, which is really the only thing that gets quoted in most of the stories on the Internet.

It is truly sad that massive anti-patent hysteria can be whipped up simply based on a single sentence in the Abstract of a patent.  For crying out loud people, the Abstract is hardly considered to be a part of the patent application and has absolutely nothing to do with the exclusive rights granted.  The claims are what defines the exclusive right, nothing else!  But we will never get the anti-patent types to ever read a claim because they are just too difficult to understand and there are way too many details.  WAKE UP!  That is the point!  The more details in the claim the more narrow the rights!

There is no denying that in the Internet Age it is easy to rile people up into a frenzy, particularly given that everyone and their brother seems to be able to offer an opinion on things that are way over their head.  Sadly an acute lack of understanding and general ignorance on a topic doesn’t stop many, if any, from offering opinions.  This is particularly alarming when such uninformed nonsense turns into popular opinion, such as in the Myriad Genetics case, and threatens to undermine public confidence in a patent system that is unjustly maligned.

There are plenty of reasons to be upset at the patent system.  For example, pharmaceutical patents are woefully inadequate in terms of patent term and should be far longer in duration to provide the requisite incentive to spend the billions of dollars required to take even a handful of drugs to market, most of which won’t make money.  But you don’t hear anyone talking about patents not lasting long enough, do you?  Of course not.  In the “me me me” culture we live in today, which seems to increasingly exalt the good of the many ahead of the good of the hard working, we pretend that we won’t run out of others peoples money eventually and that cooperation of those with money is really unnecessary.  Criticize, vilify and then tax is not a strategy for prosperity.  It is a strategy for a failed State.  Haven’t we learned at least that much from history?  Sadly, the answer seems to be a resounding NO.

It seems that many want to pretend that benevolent billionaires and benevolent mega-giant companies are going to spend exorbitant amounts of money on research, development, commercialization and taking products to market in a world where no exclusive rights exist and it is easy for copyists to free ride.  Can’t we please at least make a semblance of an effort to keep it real?  Vilifying business and pointing to patents that are ridiculous because today they cover something obvious is naive to the extreme.  The question isn’t whether they are obvious today, the question was where they obvious when the application was originally filed!

Excuse me for also noticing that the most venom is saved for those patents that relate to the most revolutionary or widely popular innovations.  Isn’t that exactly what we want the patent system to be encouraging?  The do-gooders who hate patents want revolutionary innovations to be free of patent rights and they want the innovations that touch our daily lives, like social networking, to be free of patent rights as well.  If you prevent the patenting of revolutionary and/or cool inventions then don’t be surprised when we don’t get revolutionary and/or cool inventions.  With patent rights funding dries up and creators have to move on to other endeavors to pay the bills.  Simple economics 101 really.

If you want to be mad at the patent system then why not be made at the fact that Congress continues to fail to deliver patent reform?  Even if the bill pending gets enacted we would still need patent reform because that which is included in the bill is not really reform, just a bunch of stuff that people agreed to.  Sure, there are some important things there, but nothing that would actually make the patent process easier, quicker or result in better patents.  Yes, in my opinion first to file makes sense, but what about inequitable conduct reform that would take away the draconian penalties that face patentees for making inaccurate statements to the patent examiner.  Hello!  Inequitable conduct is a fraud based theory so requiring something like FRAUD might be a nice start.

So many of those that protest the patent system, and protest so many other things it seems, always want the United States to become like the rest of the world.  Where here is a sensible opportunity for that to happen.  The rest of the world doesn’t have inequitable conduct, so why not become like the rest of the world with respect to that?  Lets try that for a while and see how it goes, shall we?  We can table the Eastern European socialism thing for a while, maybe a century or two, and instead pick up with adopting things from abroad that actually make sense.  What a novel concept.

But NOOOOOOOO!  Those who have an ax to grind with the patent system focus their Spidey senses with laser like precision on the title to an issued patent or a sentence from the Abstract.  They stop reading, happy with the enormity of their misunderstanding, ready to opine that the patent system is ridiculous and an embarrassment.  How such generally clueless individuals who can’t find the time to inform themselves about the intricacies of the patent system are able to come to such an accurate conclusion is scary on a Twilight Zone level.

Yes, the patent system is ridiculous and an embarrassment, but not because Amazon has patented social networks.  As it turns out this patent application was first filed in 1997.  The recently issued ‘139 patent has this paragraph:

This application is a continuation of U.S. application Ser. No. 11/022,089, filed Dec. 22, 2004, now U.S. Pat. No. 7,386,464 which is a division of U.S. patent application Ser. No. 10/780,486, filed Feb. 17, 2004, now U.S. Pat. No. 7,194,419 which is a continuation of U.S. patent application Ser. No. 09/348,355, filed Jul. 7, 1999 (now U.S. Pat. No. 6,714,916), which is a continuation of U.S. application Ser. No. 08/962,997, filed Nov. 2, 1997 (now U.S. Pat. No. 6,269,369).

Now I know those who hate the patent system can’t be troubled with educating themselves or exposing even just a fragment of reality into their otherwise blissfully ignorant opinions, but when there is a continuation filed that means the subsequent filing is nothing more than the earlier application on which it is based.  So we have continuations on continuations, which means the recently issued patent contains nothing different than what was filed back on November 2, 1997.

Some reports have reported that this application was filed on May 27, 2008, which is technically correct I suppose, but saying just that is horribly misleading.  The continuation that directly relates to the original filing of November 2, 1997 was filed on May 27, 2008.  So some people are going to get themselves all worked up over this patent on social networks being filed in 2008 and granted in 2010, believing that a patent system that awards a patent in 2010 on technology that clearly existed prior to the filing date is out of control.

I suppose that we should be thankful that those criticizing the Amazon patent didn’t stop reading after the title and actually read the Abstract.  Maybe there is hope that one day they will actually read the entire patent, maybe even including the claims too, before they run off and play the part of Chicken Little.  Now don’t get me wrong, they play the Chicken Little role VERY well, but call me crazy, I think that the sky should actually be falling before you warm up the Chicken Little act.

The reality is that the patent system is in horrible disarray.  Congress has been worse than AWOL on the issue of patents for at least the least the last 5+ years.  Not only haven’t they done anything that could help, they haven’t done anything at all.  What makes this ridiculous and worse than just being absent without leave is they debate it every year and spend a lot of time on the issue, only to come up empty in the end.  So they waste our time and our money.  While the UN is the most useless debating society in the world, the US Congress seems to come in a very close second any more, and that is a tragedy.

There are those out there who will rant and rave and whip up fear without any reason or justification.  Unfortunately, with something as important as patent and innovation policy this is a very dangerous and counterproductive thing to do.  Those who are loud on the Internet rail against the patent system and want to live in a fairy tale world.  Perhaps the weather in that world is nicer, but I prefer to stay grounded in reality.

The patent system is still the answer to getting us out of the Great Recession.  Jobs can be created, industries started and prosperity returned.  The frantic lunacy of those who don’t know what they are talking about just gets in the way.