Lies, Damn Lies and Media Hatred of Patents (and the CAFC)
|Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog
Zies, Widerman & Malek
Follow Gene on Twitter @IPWatchdog
Posted: Oct 3, 2012 @ 6:15 am
If most reporters knew anything about patents they would be embarrassed to have their names professionally associated with the drivel they try and pass off as news. But media ignorance of patents specifically and intellectual property generally is nothing new. Errors are so easy to document that it is virtually impossible to take them seriously. But then every once in a while an article crosses the line even for a know-nothing anti-patent zealot masquerading as a journalist.
Indeed, few articles have struck a nerve in me quite the way that a recent Ars Technica article did. The article is titled How a rogue appeals court wrecked the patent system. It is a cheap shot, factually inaccurate and embarrassingly incorrect “news” story that concludes the Federal Circuit is at the heart of all the problems in the patent system. A real Pinocchio tale.
How did the media get to such a low place, where sensationalism means more than truth? Once upon a time the media was viewed as a bastion of truth and integrity. They were viewed by the Founding Fathers as the virtual fourth branch of government. A free media would offer checks and balances against the three co-equal branches of the federal government, and by keeping the people informed would keep government in check. Oh how the mighty have fallen. There is hardly any such thing any more as a fair and objective media outlet. Simply put, truth doesn’t matter to the media. That which passes for news is full of errors, inaccuracies and outright lies. The public is being deceived, and in our little space the deception seems to be part of a coordinated effort to destroy the patent system as we know it.
Overwhelmingly media outlets have an agenda — get people to watch, read or listen at all costs. Media bias and issue advocacy seems to be what many media outlets have decided is the best way to increase market penetration. Media bias and issue advocacy seems to appear virtually any time a non-industry media outlet publishes any kind of faux-news article on any topic relating to intellectual property. Sure there are good reporters out there fighting the good fight and doing whatever they have to do to get the story correct, such as John Schmid at the Milwaukee Sentinel Journal. Sadly, for every John Schmid that cares enough to get it right there are dozens and dozens of reporters who either have an anti-patent agenda or who are completely ignorant.
Just the other day I watched a TV news report go to length to discuss the measures Kodak was taking to help prevent the company from going into bankruptcy including selling the company’s patent portfolio. For goodness sakes Kodak has been in bankruptcy all year and is fighting to get out of bankruptcy! See, for example, here and here and here. If the media can so casually and carelessly get something like Kodak being in bankruptcy wrong then what else are they getting wrong in those areas where we are not intimately familiar?
The way that the ACLU and the various anti-patent zealots have approached the gene patent question is also evidence of media bias. Anyone who is willing to lie and say that Myriad’s patents cover every man, woman and child in the United States gets whatever time or space they need to explain their clearly erroneous views. The more outlandish the claim — such as Myriad owns every man, woman and child in the United States because the Patent Office gave them these patents — the more likely it will be repeated again, and again, and again. Never mind that the patent actually covers isolated DNA, which simply, as a matter of science, cannot exist inside any human being. See, for example, here and here and here.
When I first saw the aforementioned Ars Technica article I was intrigued by the title. A rogue court? I think we certainly have one of those that interferes with the U.S. patent system. I thought perhaps this could be an enlightened view of how the Supreme Court has ignored its own patent law precedent, breathed mindless (and needless) uncertainty into fundamentally important patent doctrines, pretends that 7,000 plus patent examiners who are not lawyers are capable of making fine legal determinations on a case-by-case basis without bright line rules to apply, and how many Supreme Court decisions on patents are internally inconsistent and hopelessly irreconcilable with other basic, fundamental patent principles.
No! Believe it or not the “rogue appeals court” that was being referred to was the Federal Circuit. At every turn the article explains how the Supreme Court is some kind of genius patent court. If only the Federal Circuit hadn’t interfered little would be patentable and everything would be right. Oh my goodness. I wanted to vomit!
There were many erroneous charges made by the author, a fellow by the name of Timothy Lee. One particularly egregious error relates to the patentability of software. Lee incorrectly claimed that the Federal Circuit overruled the Supreme Court and found that software was patentable when the Supreme Court had said it was not. He wrote:
[S]oftware was generally considered to be ineligible for patent protection based on a trio of Supreme Court decisions handed down in the decade before the Federal Circuit was created.
Of course, this is completely false.
What is the truth relating to software patentability? Well, the United States Supreme Court first addressed the patentability of computer software in Gottschalk v. Benson. It is true that it was the widespread belief in the industry that the Supreme Court in Benson decided that software was not patentable, which is a fair reading of the decision. What Lee ignored, however, is that the Supreme Court later retracted the blanket prohibition against patenting software in Diamond v. Diehr. So it is simply factually inaccurate to say that Supreme Court precedent prohibits the patenting of software. Lee just didn’t do his homework or didn’t care to get it correct. For those interested in the history of the patentability of software please see my 4 part series The History of Software Patents.
In any event, since Benson and Diehr the Federal Circuit has spent the better part of three decades trying to figure out under what circumstances software (or computer related processes) should be patented. Quite recently, however, the Supreme Court weighed in again in Bilski v. Kappos. Don’t believe me? Read the decision for yourself. Only Justice Scalia refused to say that at least some software is patentable. Justices Kennedy, Roberts, Alito and Thomas would favor widespread software patentability, while Justices Stevens, Breyer, Ginsberg and Sotomayor recognized that at least some software has to be patent eligible. See footnote 40 of Justice Stevens’ opinion concurring in the judgment, which approves of Judge Rich’s ultimate decision of patentability in State Street.
Indeed, in Bilski the Supreme Court specifically acknowledged that software is patentable. So why didn’t Lee mention this 2010 Supreme Court decision? Because the Bilski reality obviously didn’t fit into his predetermined narrative. But how could it fit into his narrative? It simply had to be ignored as if it never existed, swept under the rug in order to tell the story he determined he wanted people to believe. But make no mistake. No fewer than 8 of the 9 Supreme Court Justices directly stated in Bilski that at least some software is patentable.
So why would Lee have made such a provably false statement? Was he lying or just clueless? It really doesn’t matter, does it? He and others like him make these clearly erroneous statements and then they just hang out there changing hearts and minds of the public and influencing political leaders. Truth SHOULD matter damn it!
Lee also spoke approvingly of Judge Richard Posner’s decision in Apple v. Samsung and “Posner’s skeptical view of the patent system…” I didn’t see any mention of the fact that the entirety of the decision was unnecessary and completely useless. Lee didn’t mention that this particular decision by Posner demonstrates everything that is wrong with a Judge pontificating about something he doesn’t understand and on an issue that was unnecessary to the decision. You see, Posner answered the question on a procedural matter and then went on several dozen pages lecturing everyone on his view of the way things should be. Posner is supposed to be conservative, and there is NOTHING conservative about babbling dicta. For my full take on the Posner decision please see The Preposterous Posner Decision.
Of course, Lee doesn’t understand the issues well enough to know what is material and what is immaterial. So what do you expect? Increasingly journalists seem to think that this “patent stuff” is easy and they can dip their toe into the water. They make the same naive, reckless, stupid mistake as does the Supreme Court of the United States. Patent law is a speciality for a reason. It is only one of two areas of speciality where attorneys can market themselves as specialists. I have passed the Patent Bar Exam administered by the USPTO, so I can say I am a patent attorney. There is a reason for the specialized examination before one can practice in the field. There is a reason that patent attorneys can practice patent law in every state in the country even without being licensed by a particular state to practice law where they work. Patent law and issues are complex and anyone that thinks they can just dabble in patent law, whether it is the Supreme Court, Mr. Lee or Judge Posner, are sadly mistaken; indeed they are foolish.
But the thing that got my blood boiling more than anything was the ignorant, arrogant, dismissiveness of Lee with respect to Chief Judge Paul Michel. Here is what Lee wrote about Judge Michel in its entirety for you to judge in context:
Instead, patent appeals are exclusively heard in DC by judges who live and breathe patent law. Unsurprisingly, this leads to insular thinking. For example, when we interviewed Paul Michel, who served as the Federal Circuit’s chief judge from 2004 to 2010, he didn’t seem to understand the problems facing small software companies. “If software is less dependent on patents, fine then. Let software use patents less as they choose,” he said, seemingly oblivious to the fact that software companies don’t have the option to opt out of patent troll lawsuits.
So Mr. Timothy Lee, who is not an attorney of any kind, had the audacity to say that Chief Judge Michel is oblivious. It is no secret to readers of IPWatchdog.com that I am a fan of Chief Judge Michel’s and have had many opportunities to chat with him on and off the record. Not only is he one of the preeminent patent scholars in the United States, but he is one of the preeminent lawyers and jurists in the United States. Chief Judge Michel was the attorney who took President Richard Nixon’s deposition, he was the lead prosecutor in the Korea-gate scandal where Members of Congress were being bribed, he was an attorney for the Senate Judiciary Committee and a Judge on the Federal Circuit for over two decades before he retired to become an outspoken (and non-paid) advocate of the patent system. And this know-nothing, tech-policy writer who doesn’t know the first thing about patents or innovation is calling Judge Michel obvious? Unbelievable!
I decided to write Lee on Sunday evening, not long after the article posted to Ars Technica. I wrote:
Perhaps you should write about something you comprehend.
While so many of your statements show a complete lack of understanding, none come close to how dismissive you are of Chief Judge Michel. Do you even realize that a software company does not obtain patents out of concerns over patent trolls? Obviously not. Do you even realize that patent trolls are unable to be sued to stop what they are doing? What good is owning a patent against a patent troll?
Please either do a better job of research or stick to writing something you understand.
He responded and said:
The point is that companies don’t have the option of opting out of the patent system if it’s not acting as a net positive to innovation.
Frankly, I’m not even sure what he was trying to say, but I replied:
Actually, they do have an option to not seek patents. There is no one holding a gun to their heads.
Further, your assertion that the patent system is not a net positive on innovation is laughably absurd and shows an incredible naivety. Only someone who is not versed in history and experience could hold such an opinion. Why don’t you look at places in the world where there is no patent system and see what kind of innovation they enjoy. Also look at places that adopt a patent system and witness the economic growth and expansion of innovation. If you care to get to the truth it is there to be seen.
I have not heard back from Mr. Lee and I doubt I will. He and the many others like him out there really don’t care about the truth. They have a philosophically driven ideology and there is no room for patents anywhere within that ideology. They celebrate the fact that prior to the birth of the Federal Circuit, patents were literally NEVER found to be valid in litigation in certain district courts and Regional Courts of Appeals. They celebrate the fact that when the Supreme Court hears a patent case it overwhelmingly winds up ruling against the patentee. They prefer to pretend that patents impede innovation rather than let the facts, experience and history tell the true story which is that a patent system unquestionably fosters innovation.
I disagree with the Federal Circuit in many instances. If I were a Judge on the Federal Circuit I would find myself in dissent in many instances and I would find myself in the majority in many instances, just like any other knowledgeable observer of the patent system would. But to suggest that the Federal Circuit is a rogue Court and has ruined the patent system is factually incorrect. It is either stated as the result of utter ignorance, stupidity or because there is an agenda.
Mr. Lee most certainly has an agenda, and an anti-patent agenda. His bio on Ars Technica proudly proclaims that he is the co-author of “a Firefox plugin that helps users liberate public documents from the federal judiciary’s paywall.” That is rich. ”Liberate public documents.” So in other words he is a computer scientists who thinks everything should be free and isn’t adverse to taking measures into his own hands to achieve the outcome that he deems proper. The terms “self important” and “self-righteous” jump to mind.
So take what Mr. Lee has to say with an appropriate grain of salt. His lack of knowledge of the subject matter is breathtaking and Ars Technica should be ashamed at having published such an inaccurate attack piece. If they are not going to properly vet articles in advance of publication then what have they become? Little more than an online technology specific version of those tabloids with the salacious headings. The patent system is far to important to the U.S. economy and our way of life to suffer from that level of journalistic ignorance and bias.
About the Author
Gene Quinn is a US Patent Attorney, law professor and the founder of IPWatchdog.com. He is also a principal lecturer in the top patent bar review course in the nation, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam. Gene started the widely popular intellectual property website IPWatchdog.com in 1999, and since that time the site has had many millions of unique visitors. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, USA Today, CNN Money, NPR and various other newspapers and magazines worldwide. He represents individuals, small businesses and start-up corporations. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.