Posts Tagged: "Ron Katznelson"

A troubling fundamental aspect of the proposed mandatory stay is that it would chip away at the quid pro quo of the patent bargain. To ensure the Constitutionally-protected exclusive right, patent rights have long been recognized as covering multiple and independent separate causes of action: “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.” 35 U.S.C. § 271(a) (emphasis added). Strict liability attaches to each one of these forms of infringement independently of the others. These are separate violations, any one of which being subject to injunctive relief “to prevent the violation of any right secured by patent.” 35 U.S.C. § 283.

Indeed, the bill’s co-sponsor acknowledges and states “[t]his bill combats the problem of patent trolls by moving to a ‘loser pays’ system for software and hardware patent litigation.” However, the bill’s sponsors fail to explain what makes the frequency, risk, or social harm of “egregious” patent lawsuits any different than those of other “egregious” civil suits in America so as to single out patent right enforcement for a special treatment under civil law. In fact, the following graph shows that in the last four decades the number of patent lawsuits filed per year has risen at slower pace than other IP lawsuits or when compared to all Federal civil suits. Patent lawsuits now constitute a little over 1% of all Federal civil suits – the same fraction as that in the mid 1970’s.

It is that time of the year where we all start to look ahead to the new year, perhaps making some New Year resolutions that are sure to last for at least a few days. Resurrecting something done two years ago, I once again contacted some of my friends to get them to go on the record with their patent and innovation related wishes for 2012. I was lucky enough to get a number of very thoughtful responses from individuals with a variety of experiences.

Over the years IPWatchdog.com has continued to try and add additional perspectives from a wide variety of guest contributors, ranging from well respected practicing attorneys and agents to high profile academics to inventors and pro-patent lobbyists. It is hard to imagine providing such depth of analysis on such an array of topics without having truly wonderful guest authors. So we take this moment to say a very special thank you and to shine the spotlight on them. Each deserve to share in any recognition of IPWatchdog.com. Without further ado, here are the guest contributors in alphabetical order, along with their contributions for 2011.

Lemley’s response introduces the new term “sequential improvement.” This suggests to us that he has now abandoned many of his claims of “simultaneous invention.” The word ‘sequential’ does not occur a single time in his article. We agree with Lemley’s new description that invention and innovation are often sequential, building in a series of related but different inventions: it is a normal feature of development and does not require a 108 page and 260 footnote article to establish it. Nor does it have radical policy consequences for the patent system which is well-adapted to this feature of real invention. But Lemley’s recommended policy would deny patents to second comers who contribute the key missing ingredient that unlocks an entire field. To Lemley’s credit, he recognizes the benefits of patent races and that the patent system leads to more innovation. But if that is true, Lemley does not explain why the patent system that we actually have is broken. His proposal to deny patents on “the most important inventions” and not grant more patents seems to flow from unreliable scholarship rather than a precise, reliable diagnosis of a problem.

If you actually read my article you will find that I simply don’t say the things they claim I say. The basic refrain of the Howells-Katznelson paper is that (1) I think Edison and the Wright brothers didn’t make inventive contributions, and (2) I diminish their contributions in service of my “radical” anti-patent agenda. With all due respect, I don’t see how anyone who read the whole paper could think I said any such thing. There is no question that Edison and the Wrights made useful contributions to the world. The point of my article is that they (and the many other iconic inventors I discuss) did not act alone. They made important but incremental contributions on the shoulders of many other inventors advancing the technology, and they often did so at about the same time as other, lesser-known inventors.

For example, regarding Thomas Edison, Lemley’s primary case illustrating the so-called “myth of the sole inventor,” he alleges that “Sawyer and Man invented and patented the incandescent light bulb” (Lemley 2011, p26) and that “Edison did not invent the light bulb in any meaningful sense” (Lemley 2011, p25). We disprove Lemley’s assertions and present five key facts that Lemley omits: for example, although Lemley cites a Supreme Court case in 1895 as a source for the statement above, he neglects to inform us of the decision reported in that case; it affirmed a lower court’s 1889 decision in favor of Edison and finding the Sawyer & Man patent invalid. Furthermore, the Sawyer and Man lamps were not commercially viable, having only a few hours life, whereas Edison’s invention was the basis for a lamp with a hundred times longer useful lifetime: electric lighting became economic and it was Edison’s invention that unlocked the field after three decades of experimentation by others in incandescent lamps. There was no candidate for an invention simultaneous with Edison’s invention.

The effort to shoehorn foreign patent priority concepts and torture a well-developed 200 year-old American patent system that has a proven record as the best in the world into foreign structures that are inconsistent with the American Constitution and its laws is a futile effort that would likely be met with successful challenge on constitutional grounds. The illusory “harmonization” goal with no demonstrated tangible benefits compared to the existing system does not justify embarking on a risky legal adventure that will destabilize the American patent system and will doom it to decades of economically taxing legal uncertainty.

What becomes clear in reading these briefs (and the excerpts below) is that despite what you might have heard to the contrary the Supreme Court has already previously addressed this issue and has done so in support of a standard appreciably higher than the mere preponderance supported by Microsoft. The argument of those in support of Microsoft has been that at least some Circuit Courts of Appeal had a lower presumption of validity prior to when the Federal Circuit announced the clear and convincing standard of proof and thereby settled patent law. While that may be true it seems abundantly clear that law setting a preponderance standard was directly in conflict with the clear and unambiguous Supreme Court precedent directly on point. In fact, there is even Supreme Court precedent directly on point saying that more than a mere preponderance is necessary even when the prior art has not been previously considered. So perhaps i4i and the amici, including the U.S. government by and through the Solicitor General and the USPTO General Counsel Bernie Knight can convince the Supreme Court not to overrule its own prior decisions and keep an appropriately high standard.

I am pleased to announce that IPWatchdog.com was selected by the readers of the ABA Journal as their favorite IP Law blog for 2010 ABA. I am also pleased to announce that for 2010 we had over 2,000,000 visits, delivered nearly 11.8 million pages, our homepage was viewed 3.06 million times and we averaged over 67,000 unique monthly visitors! Thanks to all our readers for coming back day after day, and thanks to all of our Guest Contributors!