Confessions of an Otherwise Respectable Blogger

By Gene Quinn
June 16, 2009

Earlier today Kevin Noonan of Patent Docs posted an article titled Falsehoods, Distortions Lies in the Gene Patenting Debate.  In the article’s first paragraph Noonan explains that ever since the filing of a complaint by the ACLU challenging the propriety of certain gene patents owned by Myriad Genetics, the debate regarding gene patents has gone mainstream.  He wrote:

Thus, there have been debates on the topic on National Public Radio, and an otherwise respectable blogger has let his pages be used by an academic with more passion than logic to present his anti-gene patenting views.

Well, I am that “otherwise respectable blogger,” now apparently known in some circles as the blogger who published The Case Against Gene Patents, which was written by David Koepsell, the author of Who Owns You?

Although no one who knows me would ever accuse me of being “left,” “left of center” or perhaps even “moderate,” it is flattering to be talked about in the same sentence as National Public Radio.  In a kinder, gentler time, before political vitriol became the rule of the day after the disputed 2000 Presidential Election, I listened to NPR, and even occasionally voted in ways that might get me marginalized in certain Republican or Conservative circles.  Nevertheless, in an odd way, being talked about in the same vein as NPR makes me enormously proud, even if I disagree with much, most or even practically all of what they seem to represent in this brave new world.  Between the Patent Office now considering me a journalist, and the comparison to NPR, it seems as if in publishing terms I am doing something right to get  noticed!

By way of full disclosure, I would characterize myself as a Republican and a Conservative, but that was not always the case.  At one point I was even registered as a Democrat, even if it was just to vote in the primary for a friend who was running for Congress (who won the primary but not a House seat), it is a part of my history.  I used to like to call myself a Moderate, or a fiscal Conservative, but as the debate changed and I spent time as a full-time academic at a number of law schools, I realized that tolerance is not something that those on the left are willing to give, even if they simultaneously preach to those on the right regarding what they perceive to be intolerance.  Plainly put, I got sick and tired of those on the left being condescending with respect to alternative views, characterizing the South and Midwest as “fly-over country” and generally being arrogant, rude and contemptuous toward those who actually thoughtfully considered issues and just disagreed.  As if the only “correct” alternative is to agree with them, even when they spew nonsense.

[Bio-Pharma]

For a long time I have wanted to have others write on IPWatchdog.com and to provide a counter-balance to my decidedly opinionated view.  Of course I think I am correct, otherwise I wouldn’t write and say what I do.  What you see is what you get with me.  As one friend has told me: “You are just more willing to notice and say that the emperor has no clothes than most.”  What can I say?  I am from New Jersey, and I call it like I see it, even if that means disagreeing with people I respect, or people who for the most part share my political views.  That is why I was so critical of the Dudas Administration.  The fact that I am Republican and Conservative doesn’t mean I can’t notice that under Jon Dudas the US Patent Office took many steps backwards, a few steps sideways and seemed generally out of step with innovators and the patent bar.

Let me be clear.  I think David Koepsell is wrong, and he and I have gone back and forth out in the open in comments to many posts, and have gone back and forth in a long stream of e-mails.  Nevertheless, I have tremendous respect for him.  He had to know what he was getting into, and that my core audience was not going to take to his point of view, but he stepped up to my offer to publish his thoughts.  Rather than those who write and hide, he has entered the debate and engaged those who disagree with him, which seems to be most everyone.  Notwithstanding, just because I disagree with him and think he is misguided doesn’t mean that he shouldn’t have his say.  What kind of “watchdog” would I be if I censored out opinions I disagree with.  You can say pretty much anything you want in comments to posts, as long as it is not vulgar and as long as it is not rude.  I will admit to having little tolerance for things close to the line when the person commenting uses a fictitious name and a fictitious e-mail address.  If you want to be a part of the debate that is great, and encouraged, but if you want to take cheap shots at people or get close to the line at least have the decency to stand up and be counted.

My philosophy is that fair and open debate crystallizes the issues.  When those who disagree with me respectfully put forth their position it allows me to analyze my own beliefs, and to form more cogent rebuttals.  The problem I had with respect to making it as a full time academic is that I had strong beliefs and opinions, and those who claimed they wanted full and fair debate really didn’t want any debate, let alone full and fair debate.  Universities are not the place for the exchange of ideas.  Professors and administrators at most Universities seem to want to live in an echo chamber, and that is appalling, if not completely disgusting.  Open exchange of ideas where everyone has to agree to stay employed and/or not be ridiculed is ridiculous, if not completely immature.

Another thing that bothers me greatly is hypocrisy.  I do not claim to be above hypocrisy, but when someone points it out I thoughtfully address in my own mind whether there is merit to the charge.  In some cases there is, and I use that to inform my own beliefs.  But I am certainly not going to hold others to a standard that I do not hold myself.  Universities are not places that encourage or reward open debate and free thinking, and I have justifiably railed against that in private and in public.  It would be nothing short of hypocritical of me to then turn around and choose to live in an echo chamber and write only for a chorus of “amens,” although the “amens” are greatly appreciated.

It is clear to me that the ACLU complaint is frivolous and baseless, and does quite clearly state many lies as if they are object truths.  They lie about what the claims they challenge say and cover, and they are grandstanding to make a political point.  This is inexcusable, and the ACLU should be sanctioned.

I am also tired of the anti-patent crowd claiming that patents prohibit research and/or innovation. The truth is that there is very little research for the sake of research at Universities any more. Since Bayh-Dole passed and gave rights to Universities to exploit their inventions and receive licensing revenue, Universities have been in business, and in many if not most cases are no longer engaging in pure research for the sake of science. The law clearly allows pure scientific research, but scientific research that is leading to the development of commercially viable innovations that will themselves be patented and licensed can only be done with permission. This is as it should be. In my view, a view widely shared by those familiar with University research, licensing and Bayh-Dole, the Bayh-Dole legislation is wildly successful and appropriate, but Universities cannot claim the benefits of Bayh-Dole and then wrap themselves in scientific research as a means to circumvent paying royalties.

I am also tired of the anti-patent crowd relying on scientists with respect to whether patents harm research and innovation.  Doing so is like relying on a park ranger for a weather report. Sure, park rangers are outside all the time and can read signs of distant but oncoming thunderstorms, but they are not meteorologists who know the causes of weather or the underlying science.

Many scientists and researchers routinely claim that patents harm innovation, but their opinions are completely uninformed; not because they are ignorant, but because they are not familiar with the intricacies of patent law. So many scientists (and computer scientists) tell me that a particular patent is in the way because it describes something, and that something is contained in the specification. Of course, the specification plays no real role in defining the exclusivity granted by the patent. Exclusivity is all about the claims. It is also impossible to know what exclusivity is provided to the patent owner without doing a thorough and complete analysis of the entire file history. So scientists are just wrong, misinformed or lazy when they dismissively claim that patents harm research and innovation. Disregard for truth and reality is not a problem with the patent system, it is a problem for those who think they know everything and choose not to educate themselves with respect to the intricacies of patent law. These people who willfully or ignorantly see road blocks are not those whom we should concern ourselves with. It is not at all likely that anyone with such narrow view of the world would ever come up with any kind of noteworthy invention, innovation or discovery.

Engaging those with whom we disagree in a respectful, yet heated, debate does not mean we are giving in, or compromising our beliefs.  While I think it is naive to engage terrorists in debate, as well as those proclaiming the virtues of genocide, there is nothing wrong, immoral or unacceptable about open and honest debate with thoughtful individuals who hold opposing views.  If my publishing of a contrary viewpoint offends anyone, I don’t know what to say.  I certainly will not apologize, and if there are others out there who truly wish to engage in a respectful way with an alternative viewpoint I would anticipate more of this type of publishing coming from the pages of IPWatchdog.com.  Even the New York Times has a token quasi-Conservative, and FOX News has a few liberal commentators.  So why can’t IPWatchdog.com have an occasionally different viewpoint that challenges our beliefs?

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

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 26 Comments comments.

  1. David Koepsell June 16, 2009 2:26 pm

    “amen!”

    lol, but seriously, let me just make one thing perfectly clear….

    I think part of the problem is the ideological divide or the attempt sometimes to create one. Claiming someone is “part of the anti-patent crowd” and that they if they are they say “patents inhibit innovation” is too simplistic, especially when one can hold moderate opinions like I have tried to express. I believe and have stated here and elsewhere that IP has spurred a lot of innovation, but I do also believe that it must be applied moderately, and I am concerned about ever-increasing realms of patentable subject matter (like business methods… Amazon’s one-click, for instance) and I am wary of the ever-increasing span of years for patents (it went from 17 to 20 while I was in law school… how long until it gets stretched to 25?). So let’s not paint others as all or nothing, good or bad, or generally in the sort of Manichean tones I have heard in various comments. My opinions are complex because the subject is complex, and I try to support my views with reason, and they may differ from yours, and sometime I am wrong and it’s entirely possible that others are too. That’s the nature of public policy debates, and this is an important one. I am a techno-optimist, and as I said, I favor innovation. I do think the means by which we help encourage innovation, and promote rewards for inventors, are open for debate.

    Thanks, Gene, for encouraging and indulging the debate. I am glad to see it because it’s vitally important. Bravo for an open forum.

    best,
    David

  2. Al June 16, 2009 2:49 pm

    “…and I am wary of the ever-increasing span of years for patents (it went from 17 to 20 while I was in law school… how long until it gets stretched to 25?)”

    That seems a bit misleading since the 20-year term now starts on the filing date instead of the issuance date. Since it typically takes ~2 years for the patent to issue, the effective term hasn’t really changed much since 1861, when it was expanded from 14 to 17 years.

  3. David Koepsell June 16, 2009 2:56 pm

    “hasn’t really changed much”

    which is the argument of the heap, or slippery slope… a little change, a bit at a time, over a period of time, isn’t really a change.

  4. David Koepsell June 16, 2009 3:30 pm

    (which is an informal fallacy, by the way)

  5. Gene Quinn June 16, 2009 3:52 pm

    David-

    Glad to provide encouragement.

    With respect to the 25 year patent term, I think the exact reverse is a problem. Since we went to 20 years from filing the effective patent term has been drastically reduced in many cases. I just saw a patent that issued last week which had been pending since 1997, and which received no patent term extension or adjustment for 12 years of waiting. I am not sure how that could happen, but will be investigating and reporting over the next couple weeks. In essence, this particular patent will wind up with only 8 years of exclusivity. It seems that since we went to 20 years from filing the Patent Office has slowed dramatically. Tie that together with publication of applications and there isn’t much need for the Patent Office to hurry because there has already been disclosure, yet patent term keeps getting less and less.

    -Gene

  6. Noise above Law June 16, 2009 4:29 pm

    I’m all for reasoned debate and listening to others, and this debate has been a welcome elevation over the typical trainwreck available on certain IP blogs, but David, you seem to like to make statements on the fly that just don’t jibe in the patent law arena. What area of law are you involved in?

    For example:
    “…ideological divide or the attempt sometimes to create one” – guilty for those who write books with dramatic titles, no matter what is said in small print – the inflaming is already done.

    “…believe that it must be applied moderately,” – Or do you mean “selectively”, like in areas that you deem OK, but not in areas that you deem not OK. – the Law does not work like that.

    “…and I am concerned about ever-increasing realms of patentable subject matter ” – opening another can of worms? Business Method patents are not new., and the categorical classification as such is a discredited theory, even according to the decision in Bilski.

    “…and sometime I am wrong” it would be helpful to have you admit where you think you have been wrong. I see the same slipshod logic applied when the criticism is brutally straightforward as from Dr. Noonan on PatentDocs as well as smoothly subtle as the dance from “breadcrumbs” earlier on IPwatchdog.

  7. Noise above Law June 16, 2009 6:03 pm

    Gene,

    You state, “These people who willfully or ignorantly see road blocks are not those whom we should concern ourselves with.”

    However, in not some small part, the rhetoric and titles of books and blog articles are precisely tuned with those whom you might consider we should not be concerned with. Soundbytes are effective in the overall war, precisely because there are those who ARE wilfully ignorant and the war of public percpetion is very much real.

    A title such as “Who owns you?” cleverly phrased as a question so as not to directly constitute a lie, still embeds as much deception as a lie. A blog titled “Falsehoods, Distortions and Outright Lies in the Gene Patenting Debate” is as much a strike against the book author as a strike to the public who will neither read the book nor delve into patent law to understand the true issues, but only skim the available surface to proclaim “Patents are bad and evil corporations want to patent genes”, if that surface is left at sensationalistic titles and slipshod logic.

    David,

    I am all for the open debate and the level of this particular debate, across more than one blog has been a welcome elevation over the typical trainwreck of certain blogs (’nuff said). However, David, your last post is indicative of some of the sloppiness that will quickly generate reactions as forceful as Dr. Noonan’s at Patent Doc’s or as sublimely subtle as “breadcrumbs” dance from an earlier IPWatchdog thread.

    For example, you state:

    “the ideological divide or the attempt sometimes to create one.” – Your sensationalistic tendencies play a part in the Noise being created and serve to reinforce the ideological divide (whatever answer you end up supplying in the book).

    “I do also believe that it must be applied moderately,…” – Or do you mean “selectively”, as in, applied to things I think are OK and not to things I think are not OK? The Law does not work that way and the logic you supply for your selectiveness is found wanting.

    “… and I am concerned about ever-increasing realms of patentable subject matter (like business methods…” – Do you really want to open another can of worms? Business methods have always been patentable. Even the recent Bilski decision discredits the business method categorical exclusion. It is obvious that patent law is NOT your field of law, even though you are a lawyer. I am curious what is your field of law?

    “…and sometime I am wrong” – It would be nice to see where you think that this has been the case – Your arguments and logic don’t seem to have been changed over the course from “breadcrumbs” dancing to Kevin’s direct assault.

    Never-the-less, your decorum IS appreciated. Just try to hit the answers to the Law and leave the public perception battle on the sidelines (if possible).

  8. Noise above Law June 17, 2009 6:25 am

    Gene,

    You state, “These people who willfully or ignorantly see road blocks are not those whom we should concern ourselves with.”

    However, in not some small part, the rhetoric and titles of books and blog articles are precisely tuned for those whom you might consider we should not be concerned with. Soundbytes are effective in the overall war, precisely because there are those who ARE wilfully ignorant and the war of public perception is very much real.

    A title such as “Who owns you?” cleverly phrased as a question so as not to directly constitute a lie, still embeds as much deception as a lie. A blog titled “Falsehoods, Distortions and Outright Lies in the Gene Patenting Debate” is as much a strike against the book author as a strike to the public who will neither read the book nor delve into patent law to understand the true issues, but rather will only skim the available surface to proclaim “Patents are bad and evil corporations want to patent genes”, if that surface is left at sensationalistic titles and slipshod logic.

    David,

    I am all for the open debate and the level of this particular debate, across more than one blog has been a welcome elevation over the typical trainwreck of certain blogs (’nuff said). However, David, your last post is indicative of some of the sloppiness that will quickly generate reactions as forceful as Dr. Noonan’s at Patent Doc’s or as sublimely subtle as “breadcrumbs” dance from an earlier IPWatchdog thread.

    For example, you state:

    “the ideological divide or the attempt sometimes to create one.” – Your sensationalistic tendencies play a part in the Noise being created and serve to reinforce the ideological divide (whatever answer you end up supplying in the book).

    “I do also believe that it must be applied moderately,…” – Or do you mean “selectively”, as in, applied to things that you think are OK and not to things that you think are not OK? The Law does not work that way and the logic you supply for your selectiveness is found wanting.

    “… and I am concerned about ever-increasing realms of patentable subject matter (like business methods…” – Do you really want to open another can of worms? Business methods have always been patentable. Even the recent Bilski decision discredits the business method categorical exclusion. It is obvious that patent law is NOT your field of law, even though you are a lawyer. I am curious what is your field of law?

    “…and sometime I am wrong” – It would be nice to see where you think that this has been the case – Your arguments and logic don’t seem to have been changed over the course from “breadcrumbs” dancing to Kevin’s direct assault.

    Never-the-less, your decorum IS appreciated. Just try to hit the answers to the Law and leave the public perception battle on the sidelines (if possible).

  9. Sting June 17, 2009 6:40 am

    Gene,

    For some reason, my moniker “Noise above Law” is being blocked from posting.

    You state, “These people who willfully or ignorantly see road blocks are not those whom we should concern ourselves with.”

    However, in not some small part, the rhetoric and titles of books and blog articles are precisely tuned for those whom you might consider we should not be concerned with. Soundbytes are effective in the overall war, precisely because there are those who ARE wilfully ignorant and the war of public perception is very much real.

    A title such as “Who owns you?” cleverly phrased as a question so as not to directly constitute a lie, still embeds as much deception as a lie. A blog titled “Falsehoods, Distortions and Outright Lies in the Gene Patenting Debate” is as much a strike against the book author as a strike to the public who will neither read the book nor delve into patent law to understand the true issues, but rather will only skim the available surface to proclaim “Patents are bad and evil corporations want to patent genes”, if that surface is left at sensationalistic titles and slipshod logic.

    David,

    I am all for the open debate and the level of this particular debate, across more than one blog has been a welcome elevation over the typical trainwreck of certain blogs (’nuff said). However, David, your last post is indicative of some of the sloppiness that will quickly generate reactions as forceful as Dr. Noonan’s at Patent Doc’s or as sublimely subtle as “breadcrumbs” dance from an earlier IPWatchdog thread.

    For example, you state:

    “the ideological divide or the attempt sometimes to create one.” – Your sensationalistic tendencies play a part in the Noise being created and serve to reinforce the ideological divide (whatever answer you end up supplying in the book).

    “I do also believe that it must be applied moderately,…” – Or do you mean “selectively”, as in, applied to things that you think are OK and not to things that you think are not OK? The Law does not work that way and the logic you supply for your selectiveness is found wanting.

    “… and I am concerned about ever-increasing realms of patentable subject matter (like business methods…” – Do you really want to open another can of worms? Business methods have always been patentable. Even the recent Bilski decision discredits the business method categorical exclusion. It is obvious that patent law is NOT your field of law, even though you are a lawyer. I am curious what is your field of law?

    “…and sometime I am wrong” – It would be nice to see where you think that this has been the case – Your arguments and logic don’t seem to have been changed over the course from “breadcrumbs” dancing to Kevin’s direct assault.

    Never-the-less, your decorum IS appreciated. Just try to hit the answers to the Law and leave the public perception battle on the sidelines (if possible).

  10. Noise above Law June 17, 2009 7:55 am

    Gene,

    You state, “These people who willfully or ignorantly see road blocks are not those whom we should concern ourselves with.”

    However, in not some small part, the rhetoric and titles of books and blog articles are precisely tuned for those whom you might consider we should not be concerned with. Soundbytes are effective in the overall war, precisely because there are those who ARE wilfully ignorant and the war of public perception is very much real.

    A title such as “Who owns you?” cleverly phrased as a question so as not to directly constitute a lie, still embeds as much deception as a lie. A blog titled “Falsehoods, Distortions and Outright Lies in the Gene Patenting Debate” is as much a strike against the book author as a strike to the public who will neither read the book nor delve into patent law to understand the true issues, but rather will only skim the available surface to proclaim “Patents are bad and evil corporations want to patent genes”, if that surface is left at sensationalistic titles and slipshod logic.

  11. Noise above Law June 17, 2009 7:56 am

    David,

    I am all for open debate and the level of this particular debate, across more than one blog has been a welcome elevation over the typical trainwreck of certain blogs (’nuff said).

    However, David, your last post is indicative of some of the sloppiness that will quickly generate reactions as forceful as Dr. Noonan’s at Patent Doc’s or as sublimely subtle as “breadcrumbs” dance from an earlier IPWatchdog thread.

  12. Noise above Law June 17, 2009 7:58 am

    For example, you state:

    “the ideological divide or the attempt sometimes to create one.” – Your sensationalistic tendencies play a part in the Noise being created and serve to reinforce the ideological divide (whatever answer you end up supplying in the book).

    “I do also believe that it must be applied moderately,…” – Or do you mean “selectively”, as in, applied to things that you think are OK and not to things that you think are not OK? The Law does not work that way and the logic you supply for your selectiveness is found wanting.

    “… and I am concerned about ever-increasing realms of patentable subject matter (like business methods…” – Do you really want to open up another can of worms? Business methods have always been patentable. Even the recent Bilski decision discredits the business method categorical exclusion. It is obvious that patent law is NOT your field of law, even though you are a lawyer. I am curious what is your field of law?

    “…and sometime I am wrong” – It would be nice to see where you think that this has been the case – Your arguments and logic don’t seem to have changed over the course from “breadcrumbs” dancing to Kevin’s direct assault.

    Never-the-less, your decorum IS appreciated. Just try to hit the answers to the Law and leave the public perception battle on the sidelines (if possible).

  13. Noise above Law June 17, 2009 7:59 am

    For example, you state:

    “the ideological divide or the attempt sometimes to create one.” – Your sensationalistic tendencies play a part in the Noise being created and serve to reinforce the ideological divide (whatever answer you end up supplying in the book).

    “I do also believe that it must be applied moderately,…” – Or do you mean “selectively”, as in, applied to things that you think are OK and not to things that you think are not OK? The Law does not work that way and the logic you supply for your selectiveness is found wanting.

  14. Noise above Law June 17, 2009 8:00 am

    “… and I am concerned about ever-increasing realms of patentable subject matter (like business methods…” – Do you really want to open another can of worms? Business methods have always been patentable. Even the recent Bilski decision discredits the business method categorical exclusion. It is obvious that patent law is NOT your field of law, even though you are a lawyer. I am curious what is your field of law?

  15. Noise above Law June 17, 2009 8:03 am

    “…and sometime I am wrong” – Can you be more specific? – Your arguments and logic don’t seem to have changed over the course from “breadcrumbs” dancing to Kevin’s direct presentation.

    Never-the-less, your decorum IS appreciated. Just try to hit the answers to the Law and leave the public perception battle on the sidelines (if possible).

    (My apologies for the string of comments, it appears that the word “a$$ault” invoked a filter)

  16. David Koepsell June 17, 2009 8:28 am

    Noise:

    A couple quick points, I’m in the midst of organizing a conference for the autumn and it’s eating all my time…

    Titles are meant to sell books, movies, etc., and if you’re ever written books you’ll know that it’s not always the author’s choice. Publishers have a significant say. Nevertheless, I stand by tit as a provocative, attention-grabbing title that hopefully pulls people into a discussion. If they fail to read the book or comprehend the complicated answer to the question, and stick to only superficialities on either side of the debate (or name calling O’Reilly style), then that’s a real shame. Most people these days seem disinclined to read past headlines, and get their talking points from TV, while failing to educate themselves. That’s not my fault.

    As to the applicability of patents, I think firstly that there is room to debate what should be and what shouldn’t be patentable, as well as what is and what isn’t patentable. Policy-makers change laws, and we as lawyers and citizens have a duty to involve ourselves in legislative and public-policy issues. At least I have made it my task, some lawyers just keep track of their billable hours. It’s why I no longer choose to practice.

    I have been wrong many times, perhaps in the de]bates mentioned in my overly simplistic description of the science on some ocassions, but I don’t believe those descriptions affected the conclusions.

    I don’t know what you mean by “leave the public perception battle to the sidelines” I think that as a democracy, laws ought to reflect public interests, and so public perception is critical to developing approaches to new issues. The law is constantly in flux, and the Patent Act has gone through numerous revisions and interpretations. It isn’t fixed in stone nor should it be. So, when talking about the law, I’m perfectly happy addressing the “shoulds” and “oughts” as well as the current state of its intepretation by bureaucrats and lawyers.

    As for business methods and Bilski, it’s off topic, and I am happy to open cans of worms eventually, I love fishing. Attacking me again, this time on my expertise in patent law is just another cheap swipe, but I stand by my opinion that the Amazon one-click patent, and business method patents in general, are often over-reaching. We can have that debate if you want, another time certainly, but it’ll be fun, and worthwhile… but only If you can separate your personal interest in maintaining your clientele, and realize that there are important public policy issues involved that affect the rate and accessibility of innovation, then we can really have some good, and potentially useful discussions.

    If you just want to defend your turf, then it’s unlikely we’ll get anywhere. I have no particular turf, since I have no economic stake in the outcome, just a philosophical interest and a preference for encouraging the useful interaction of science and technology.

    best,
    dk

  17. David Koepsell June 17, 2009 8:39 am

    sigh, I wrote a long reply but Safari keeps crashing on me… I should install Firefox, a nice Open Source browser…

    but anyway, I need to attend to conference planning. I had some defenses of my positions, which included my belief that lawyers shouldn’t be afraid to be involved in public policy debates, shouldn’t treat the law as fixed in stone, and should be willing to consider the public’s perceptions in crafting and applying law. I had some more about the changing nature of the Patent Act and its interpretation over time. I had a bit about your cheap swipe at my expertise about Patent law (I’m not a patent lawyer, though I did teach IP law for a while). I ended with something about how if each of us is only defending some sort of turf, then we won;t get anywhere, but if we are willing to consider the implications, both theoretical and practical, of what the PTO does, then maybe through debates like this we can come up with solutions to what occasionally are problems or errors in the ways that the PTO and courts, as well as legislators all act. I had an admission of error in my simplistic explanation of some of the science, but I mentioned it didn’t affect my arguments directly. I had other stuff that I forget now, and have no time to reconstruct. Oh, and I had a bit defending my title, and suggesting that it is up to individuals to educate themselves, to look past the superficial marketing, and to understand issues before forming opinions.

    Mostly, I feel disheartened by the frequent attempts to make all this personal. I don’t want you to lose clients, I don’t want your work to suffer, but as in any human endeavor, and especially in the law, not everything that is currently accepted is efficient, fair, or just. We ought to be able to challenge the status quo without people impugning us personally, professionally, or otherwise. But I’m an idealist, and It’s why I no longer bill hours but instead choose to write about these issues from the outside looking in. I think things could work better, but often I am confronted with the reality that first people must act better.

    It all seemed so much better before Safari crashed, so forgive this slapdash attempt to send a comment before it crashes again.

    peace

  18. Gene Quinn June 17, 2009 9:12 am

    Noise-

    We no doubt live in a sound bite driven world. I agree with you completely. Sound bites work because most people choose to only be casually informed and gravitate to what they hear. When they hear it multiple times from multiple sources a lot of folks take that as proof. Far too many people refuse to even acknowledge that we live in a world without journalistic ethics, where journalism is becoming an echo chamber, there is no investigative reporting and openly cheering for a predetermined outcome. That is why the ACLU complaint and major news outlets carelessly getting simple facts wrong matters so much.

    -Gene

  19. Gene Quinn June 17, 2009 9:16 am

    There are no “ever increasing realms of patentable subject matter.” This is a clear misunderstanding. The law in the US has always been not to weed out patentable subject matter, except with some very basic core principles. You cannot patent nature, you cannot patent an equation, you cannot patent things only capable of an illegal use and you cannot patent atomic weapons. Other than that we have always been able to patent anything.

    What has changed is science and technology. With ever advancing innovations some are uncomfortable with anything and everything being patented. That does not mean patentable subject matter has changed. It means technology has advanced, which by the way is exactly what the patent laws are intended to foster.

    If we want to have a robust debate on what should be patentable subject matter, fine. But it is historically and factually inaccurate to say that the law is changing and allowing more and more to be patentable subject matter.

    -Gene

  20. David Koepsell June 17, 2009 9:22 am

    “you cannot patent nature”
    (but sometimes people do)

    Perhaps the law hasn’t changed, but the interpretations of the law have become, I think, more lax, especially in respect to unmodified gene patents, but that’s old territory now and I don;t wish to till ploughed earth.

    hope your travels were safe and speedy Gene, I gotta get back to the academic crap for now. Perhaps in a week or two I’ll offer another post to rile up the readers. 😉

    peace.

  21. Gene Quinn June 17, 2009 9:26 am

    David-

    I can understand why you think this is becoming personal, but I don’t think that is the case. You have to realize that you are a bit unique. We hear from so many who have your point of view who are simply not interested in a true debate. I have enjoyed our exchanges, and invited you to post, because I feel you really are in it for the debate.

    I don’t think we are afraid of public policy debates. What we are afraid of is tactics like the ACLU is employing. They are attempting to use the courts in a dishonest way. There is simply no legal support for their theory, and they openly lied about what the patents say and what they cover. This matters, as Noise has pointed out, because we live in a sound bite world. If we are going to make fundamental changes to something as important to our economy and which has Constitutional importance the debate must be open and honest. I feel you are open and honest, but so many with your point of view are unfortunately not. They do not want to be informed, they want to preach and make statements that are wrong simply to further their own agenda.

    Public policy has its place, but that place is Congress, and even then should not be based on misconceptions and erroneous beliefs and agendas of the popular press.

    I am actually happy you don’t know more about patent law, because if you did you could be dangerous! I personally believe you are on to something and don’t begrudge your point of view. I think you should be making your arguments not on the law, but on the science. If you were asking “should this be the case” your reception might be very different. Regardless, at the end of the day the biggest argument against you is that scientific advances bring about great and advantageous change and outcomes. Either we need to fully fund the trillions of dollars in research and development that go on every year, or we need to allow private enterprise to take on that risk, which they will only do if there is a reward available, and a hefty one.

    -Gene

  22. Gene Quinn June 17, 2009 10:43 am

    Noise (aka Sting)-

    I don’t know why some of your stuff is getting caught in the comment spam filter. Some of David’s stuff is also getting caught, while other stuff gets through. I will try and figure it out, but is seems random. Further proof that Chuck Connell is right about software always having a human element, thus making it more about engineering and less about hard science, much to the dislike of mathematicians and computer scientists… more to come on that next week.

    -Gene

  23. Al June 17, 2009 11:13 am

    “…which is the argument of the heap, or slippery slope… a little change, a bit at a time, over a period of time, isn’t really a change…”

    I agree that there has been a change, but it hardly seems to be a cause for concern. To answer your question, if patent terms have effectively increased by ~1 year since 1861, we’re on track to see 25-year patent terms sometime in 2749.

  24. Noise above Law June 17, 2009 11:18 am

    Gene,

    My specific sticking point was the word “a$$ault” with “s” rather than “$”, which unfortunately was in the second to last paragraph.

    I was able to isolate this with multiple string submissions.

  25. Gene Quinn June 17, 2009 12:23 pm

    Noise-

    Thanks! I put the word “a$$” on the spam list. Now I know it is a string search. I was wondering what was going on. I will see what I can do.

    Sorry for the inconvenience. Your contributions are appreciated. If you ever want to come out into the open publicly and contribute an article, let me know.

    -Gene

  26. Noise above Law June 17, 2009 6:54 pm

    Gene,

    Please feel free to delete this post and posts 6-9, as posts 10-15 cover the content in the ealier posts in better, bite-sized portions.

    And thank you for the offer of an article – At this time, I prefer to maintain my pseudonymity.