Something’s Got to Give

By Cama McNamara
February 5, 2016

inventors-digest-February-2016This month, Inventors Digest features interviews with two heavyweights in American enterprise: Priceline inventor and chair of Walker Digital, Jay Walker; and Mark Cuban, founder of Broadcast.com, owner of the Dallas Mavericks and a regular on the popular TV series Shark Tank. Both men are billionaires who believe the patent system is flawed, but for different reasons. Both want to “fix” the patent system—with diametrically opposing methods.

Walker is a named inventor on more than 650 patents and, as such, is the world’s 11th-most patented living inventor. The 2015 Intellectual Property Owners Education Foundation’s Inventor of the Year is a firm believer in the value of a patent as a property right.

Walker says that without patents he could never have launched Priceline, a now-$60 billion business with thousands of employees, nor could he have started several other businesses. One of the strongest points Walker makes is that he could not have devoted the time and resources to research and develop businesses and systems that have benefited the economy—both at home and globally—without patent protection.

The patent system in this country, for better or for worse, is undergoing fundamental changes. Even 20 years ago, patents were valued and respected, says Walker. If a small inventor were issued a patent, he had confidence his idea would be protected, and if necessary, enforced through the courts.

Knowledge sharing was an integral part of the patent process, says Walker. Patent holders claimed their inventions for a certain period of time, during which the information was shared, and more often than not, improved upon. One innovation often led to an even greater idea. Just ask Thomas Edison. Today, the random interpretation of patent laws by the courts combined with the exorbitant fees necessary to defend a patent, Walker says, are stifling the innovative and entrepreneurial spirit that made our country great.

Cuban, on the other hand, would just as soon rid the country of its patent system altogether. In 2012, he went so far as to donate $250,000 to the Electronic Frontier Foundation to establish the Mark Cuban Chair to Eliminate Stupid Patents. “The current state of patents and patent litigation in this country is shameful. …,” Cuban said at the time. “Silly patent lawsuits force prices to go up while competition and innovation suffer. That’s bad for consumers and bad for business. It’s time to fix our broken system.”

Rather than a property right, Cuban believes patents should be the catalysts for business opportunities and used as such within a defined period of time. “A patent by itself is worthless,” he says. “… Punchless patents, those with no revenue sources, create huge problems for the system. They become golden tickets for trolls.” Cuban has invested in 150 companies in which, he says, having or not having a patent did not affect his decision.

Cuban is not a proponent of software patents, either, because “not much, if anything, is completely original in software,” he says. If issued at all, software patents should extend for a period of no more than five years.

On the other hand, people like Inventors Digest contributor and patent attorney Gene Quinn, and Jay Walker, who has millions of dollars invested in patent software and related businesses, completely disagree with Cuban. “Unfortunately, if we dismember intellectual property, and if we tell people that software, which is the next greatest frontier in the world’s value creation, can’t be patentable, that’s a disaster for the United States,” says Walker.

Despite opposing opinions on many issues, Walker and Cuban agree one thing: Both believe the courts and money are bogging down innovation. “The IP and patent game has become a sport of kings now, and America and the world are losers,” says Walker.

“With few exceptions, the current system doesn’t protect anyone,” says Cuban. If you get major patent reform, hopefully the big companies have less incentive to try to bully anyone.”

And another opinion they share: Something’s got to give.

The Author

Cama McNamara

Cama McNamara is editor-in-chief of Inventors Digest magazine.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 12 Comments comments. Join the discussion.

  1. step back February 5, 2016 8:06 am

    It’s not merely the US patent system that has changed and “given in”.

    Scientific and technical literacy among America’s ruling class has given in to the dark side by falling for linguistic skims over the top in place of deep dive comprehension.

    Consider how the US Supreme Court and the President appear to understand computer systems, software and coding the heck out of stuff (a paraphrase on Obama’s “sciencing the heck out of stuff”).

    Supreme Court Justices who don’t know even how to use email are making blatant findings of fact from an ivory tower bench about how a mere 2nd year engineering student can “code” up any abstract idea over weekend’s short gleaming. Maybe they’ve watched the TV space series Star Trek enough times to believe that incantation of magic words such as “make it so” or “apply it” are enough to convert any “idea” into reality.

    Similarly, in his State of the Union speech, President Obama preached his belief in how the 3 R’s can be supplemented elementary students learning how to “code”, where that alone will make our country competitive and great again.

    http://patentu.blogspot.com/2016/02/coding-heck-out-of-code.html

    That applies not only in the computer related technical fields but also in the biotechnical fields. Supreme Court Justices see biochemical manipulation of genetic material as mere plucking of leaves from trees or simple peelings of bananas plucked from trees. The President thinks he can do a JFK magic trick by telling good old Joe to make it so with a moonshot at cancer.

    Where have you gone, Joe DiMaggio?
    Our nation turns its lonely eyes to you.
    What’s that you say, Mrs. Robinson.
    Jolting Joe has left and gone away,
    Hey, hey, hey
    Hey, hey, hey

  2. Anon February 5, 2016 9:14 am

    Sound byte [sic] journalism has replaced critical thinking.

    This is but one offshoot of a propaganda war that has been raging for well over fifty years (and stretches back to before the Act of 1952).

    This article does focus merely on the here and now, but the real battle is far deeper, and has been “engaged” for far longer.

  3. Night Writer February 6, 2016 11:31 am

    The problem with Mark Cuban’s views are that he doesn’t understand where the technology underlying the products he makes comes from.

    @1 step back: I don’t get why it is so, but ironically abstract linguist skimming is what has won the day.
    @2 Anon: maybe it is the change in circumstances with t.v. replacing literacy.

  4. Anon February 6, 2016 2:21 pm

    Night Writer @3,

    Perhaps it is that twits** have replaced t.v.

    **I think the proper term is “tweets,” but “twits” better fit the attention span.

  5. step back February 6, 2016 9:56 pm

    NW@#3

    I don’t get why it is so

    The answer is very simple.
    It is the human vice of vanity.

    If you were a sitting Supreme Court Justice what would you rather believe?
    a) These crafty patent attorneys are trying to bamboozle you when in fact its as simple as plucking a leaf from a tree (in the Myriad case), or
    b) Biochemistry is too complex for you to understand without benefit of many years of schooling and you shouldn’t be sticking your Rhode scholar tongue into areas it knows not what it speakith of?

    The egocentric answer is clear. The correct answer is “a)”.

  6. Anon February 7, 2016 7:45 am

    What is so ironically worse, step back, is that at the same time that the Supreme Court finds it way to your “correct” answer of a) and would harangue the “scriviners” who seek the full rights afforded by the words of Congress, they themselves “scriven” in manners that are truly offensive to the very “rule of law” that it is their job to protect!

    By this, I mean that they themselves seek to rewrite statutory law in their image, violating the constitutional separation of powers, and they have done so in a manner that has created a void for vagueness result (another different violation of constitutional rule of law).

    They have by their own edicts, appointed themselves to be ABOVE the law and ABOVE the notion that ALL three branches of the government are constrained by the Constitution – the very thing that our founding fathers were most concerned about with the Judicial Branch.

  7. step back February 7, 2016 9:15 am

    Anon @#6

    Well said.

    Also the fourth estate (the press) has equally as much blame to be put on them for acting as mindless robots, repeating everything the Supremes say as if it is gospel from heaven above. Never once does the press dare to point out that these ivory tower “Emperors” parade in the bare and outside the canopy of the Constitution.

    Lastly, the fifth estate (the bar) shows themselves to be a bunch of sniveling cowards rather than scrivening stalwarts of the Constitution by consenting to abide by the unconstitutional edicts of the Supreme Leaders. This is not the land of the free and the home of the brave. This is the kingdom of the cowards and the abode of the sycophantic acquiescers.

  8. Night Writer February 7, 2016 11:06 am

    Anon and step back: I agree. Well said. There was an article in the Washington Post about how Roberts says that the SCOTUS is actually just calling strikes and balls and is not politicized at all and not acting outside the Constitution.

    What a joke. I think the press is probably the most to blame. They are the ones in a position to stand up to these people say no. But, when you look at the type of person that does well in the press they are typically more arrogant than intelligent. Still Bill Moyers had a series on PBS about how the press stopped asking tough questions to Reagan. This was the time the concept that everyone had a valid opinion came in and it was not appropriate to challenge what someone said. Katy Couric is probably the worst. I remember her before she was a network star. She just pandered to anyone and accepted anything anyone said as valid. The only thing she cared about was getting promoted and getting along. Really, really low quality human.

    I think it is the same thing with the SCOTUS justices. Those people are shooting for the SCOUTS at an early age and form their opinions to position themselves for the job. By the time they get the job, they have no mind left of their own. (And, let’s be real: Google selected about 1/3 of the current Fed. Cir. judges who agreed on a phone call with Obama that they would take care of the problem with patents. Reality.)

    So, it really is the zeitgeist. There are some powerful forces at work that are taking out patents. Big corporations, monopolies, Citizens United, the press accepting all views as valid, the rise of the political appointment to the Fed. Cir. and SCOTUS, etc.

    The situation is just unacceptable. There is just no gray area at all that Alice is unconstitutional and ridiculous. Anyone that knows the first thing about patent law can see it is absurd to merge 101/102/103 and 112 together in a SJ and pretend it is fine.

  9. step back February 7, 2016 4:50 pm

    Day Writer @8,

    Come on man.
    What would you rather do?
    Focus your brain and work it hard?
    Or sit back, consume small sips of beer, watch the Super Bowl and absorb subliminal messages for massive consumption of things you really don’t need?

    http://patentu.blogspot.com/2016/02/crony-capitulators.html

  10. Anon February 8, 2016 9:55 am

    As to “and absorb subliminal messages for massive consumption of things you really don’t need?” – my favorite had to be the Quicken Loans “Rocket Mortgage” ad and the implicit “this is America” heartstrings pull that everyone deserves a mortgage through them so as to boost the economy.

    Didn’t that self same “logic” produce the last mortgage bubble?

  11. staff February 8, 2016 1:19 pm

    ‘Today, the random interpretation of patent laws by the courts combined with the exorbitant fees necessary to defend a patent, Walker says, are stifling the innovative and entrepreneurial spirit that made our country great’

    How right he is, but the problems extends to law and the PTO itself who has been commandeered by large multinationals. Don’t believe the lies of Chinese and multinational invention thieves. Inventors regard Cuban as one.

    For more information please visit us at https://aminventorsforjustice.wordpress.com/category/our-position/
    or, contact us at tifj@mail.com

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