I am in New York City this week taping the new patent bar review course, which is a part of our effort to bring the course current with the latest changes in the law and rules that will begin to be tested starting April 2, 2013. After a long day of lecturing and preparing materials and writing questions, I had dinner and found myself sipping a drink at Randolph’s, which is the bar attached to the Warwick Hotel, where I stay when in New York City. Unwinding from the day I decided to catch up on news – for me that means reading Politico or The Hill typically. I learned that Rand Paul engaged in a filibuster over drone strikes and Jeb Bush is on a book tour and folks are speculating about whether he will run for President in 2016. But I also learned that the self-appointed anti-patent billionaire idiot – Mark Cuban – was at it again. I quietly asked for the check and excused myself from an otherwise enjoyable evening of relaxation. Mark Cuban is an idiot!
Mark Cuban, the flamboyant owner of the Dallas Mavericks, has said some truly ridiculous things about patents. Recently, he complained to Tech Crunch about patent lawyers that “make too much money,” which is something that only a truly out of touch billionaire could rationalize. Really? A capitalist billionaire complaining about anyone making too much money ought to be a bridge too far for anyone. But Cuban doesn’t stop there, he talks about “dumbass patents,” and how patents on things that others later figure out ought to be invalidated. As if hindsight doesn’t make everything obvious in retrospect. Seriously, if he really holds these thoughts it has to be a complete accident that he managed to become a billionaire.
But this time it wasn’t that Mark Cuban made this idiotic and completely indefensible statement about the patent system that got me started. Nevertheless, he is still to blame. You see, Julie Samuels is the “Mark Cuban Chair to Eliminate Stupid Patents” at the Electronic Frontier Foundation. What a title! The Mark Cuban Chair to Eliminate Stupid Patents? And folks are actually supposed to take this seriously?
WASHINGTON — The U.S. Commerce Department’s United States Patent and Trademark Office (USPTO), the National Science Foundation (NSF), and NBC Learn, the educational arm of NBC News, today launched an 11-part “Science of Innovation” series to coincide with the 165th birthday of American inventor Thomas Edison. The program represents the latest intellectual property (IP) education efforts by the USPTO and serves as a public-private partnership leveraging the best strengths of federal agencies, industry, and educators to demonstrate the connection between IP and the science, technology, engineering and mathematics (STEM) fields.
Narrated by NBC News’ Ann Curry, the series features innovators from across the country, including scientists and engineers working on projects in industries as diverse as healthcare, energy, transportation, agriculture, and more. “Science of Innovation” looks beyond the popular concept of innovation as the result of a single event or brilliant idea. Instead, it examines the processes and steps that anyone from a garage tinkerer to a federally funded scientist can take to discover new solutions to pressing problems or to add value in new ways to existing products, services or technologies.
Between the legacy issue of bad patents, patent auctions and the many who purchase patents, what has started to happen is that the patent system rewards those who have the finances and ability to game the system. But the problem is extraordinarily complex. What is clear, however, is that the enforcement of bad patents is a problem within the patent and innovation industry.
But at the same time it would really be GREAT if the media and anti-patent community would get a clue and understand that the problem with bad patents is largely a legacy issue. Those that say that the United States Patent and Trademark Office continues to hand out dubious patents like candy are flat wrong. The bad patents that we witness being used in unsavory shake-downs have not been granted over the last few years, but rather were granted many years ago, under a different patent regime and when there was little findable prior art for patent examiners to use.
Those that pretend that bad patents issue today by the dozen and for a dime are living in a fantasy world that does not approximate reality. Yet the misinformation continues, undaunted by reality. So if reality doesn’t support the mountains of misinformation about the patent system and how it operates today, what is going on?
To hear some critics tell it, the explosion of patent suits in the smartphone industry is evidence of a patent system that is fundamentally “broken,” at great cost to U.S. innovation.
Such histrionics, however, ignore one crucial but little known fact: throughout American history, the buying, selling, and litigating of patents has always been essential to U.S. economic success. Not only that, the truth is that today’s patent litigation rate is less than half what it was in the mid-19th century, a period widely-recognized as the “golden age” of American innovation.
In my experience, the passion to invent is stirred by two things: dissatisfaction with an existing product or service (i.e., too large, too slow, too expensive, too difficult to use), or a dream and desire to create something entirely new, a product or service that will augment humanity’s capability to reach farther, move faster, aggregate and analyze all sorts of data, or bring together pieces and form a whole that is greater than the sum of its parts.
Over my career I have been a named inventor on 147 U.S. patents. Over my career I have developed a process for identifying consumer needs and creating unique, patentable solutions that are relevant in the marketplace. I call this the Eureka Method. The Eureka Method is a mental discipline that can be learned and practiced to help you produce a Eureka! moment. You may call it an epiphany or a flash of insight, brilliance, or creative genius. It’s that moment when an inventive solution finally crystallizes in your imagination. I call this critical event a “Eureka! moment” in reference and tribute to Archimedes who had been wrestling with the problem of certifying a goldsmith’s claim that the crown he had made for the king was of pure gold. Upon solving the problem Archimedes exclaimed, “Eureka!” Translated, the Greek word means “I found it!” He had his solution and I found the title for my book.
In his October 9 response, Lemley asserts that our critique engaged in ad hominem attack. Our critique notes that he “neglected” to mention critical facts, that “his scholarship is unreliable,” and that “no reader should take his radical proposals for new patent law seriously.” We regret that Lemley regards this treatment of his treatment of sources as ad hominem attack on him. Our critique is directed to defects in his work.
But if there is one thing I have learned in thirty years of arguing for a living (first as a debater, then as a lawyer), it is this: when an opponent has you dead to rights in an argument, they don’t feel the need to result to ad hominem attacks. So the fact that the Howells-Katznelson paper is chock full of insults and personal attacks against me ought to give you a bit of pause. Maybe it is enough to make you take a closer look at exactly what they say.
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