Absurd WSJ Article Suggests Argues for Slower Patent Process

By Gene Quinn
September 10, 2010

On Wednesday, September 8, 2010, the Wall Street Journal published commentary titled Want to Create Jobs? Certainly Don’t Rely on the USPTO, which was an attempted rebuttal of the NY Times op-ed written by Chief Judge Paul Michel and Tessera CEO Hank Nothhaft, which was titled Inventing Our Way Out of Joblessness. I say that it was an attempted rebuttal because simply stated the article was embarrassingly incorrect about virtually everything it stated as fact, and provably so. The fact that the Wall Street Journal published such complete and utter nonsense, which could have been proven to be factually incorrect had anyone even read the study relied upon by the authors, is quite sad.  Those who don’t believe innovation leads to job creation have their heads firmly implanted in the sand and simply must choose to ignore history, which proves otherwise.

My politics are well known, and I am not a fan of the NY Times, but neither am I going to simply ignore everything they publish. The only way to explain this ridiculous article that concludes the patent process should be starved for funds and slowed down, rather than speed up, is as an irrational anti-NY Times agenda. While the authors are obviously quite unknowledgeable, they are no doubt patent haters.  The editors of the Wall Street Journal, on the other hand, must have believed that if the NY Times took one position they should take the opposite position. The fact that the Wall Street Journal failed to fact check and threw innovators under the bus is inexcusable.

This horribly inaccurate article starts off by saying: “A patent myth is loose in the land about their importance to innovators and those that finance them.” Then the article goes on to make this astonishingly incorrect statement:

Mr. Michel and Mr. Nothhaft’s claim that “three-fourths of executives at venture capital-backed startups say patents are vital to getting financing, according to the 2008 Berkeley Patent Survey” is simply not true.

Really? Unbelievable! All you have to do is read the study to realize that this is EXACTLY what the study says!

The authors attempt to argue that the Berkeley Patent Survey is taken out of context. They then confuse the issue by quoting Pam Samuelson, who was the co-principal investigator of the Berkeley Survey, as pointing out that there are funded software companies that do not seek patents, and that “software startups that hold patents regard them as providing only a slight incentive to invest in innovation.” The incongruency of their arguments was aptly exposed by Hank Nothhaft, who scored the first comment and opened the gates that would expose the authors. Nothhaft wrote:

What Mendolsen, Feld and Kedrosky are trying not so subtly to do here is to confuse the question of patents’ importance to startup financing with their role in the innovation process or in securing competitive advantage, or the percentage of startups that actually hold patents.

Nothhaft went on to write:

“In sum, the 2008 Berkeley Patent Survey has found that startups are patenting more than previous studies have suggested; that patents are being sought for a variety of reasons and that there are considerable differences among startups in the perceived significance of patents for attaining competitive advantage, with biotech companies rating them as the most important strategy and software companies rating them least important.” [quoting Pam Samuelson]

So entrepreneurs in different industries rate the various benefits of patents differently according to the dynamics of their own sector. Hardly surprising…

The insidious nature of this WSJ article is that it is presented as if the Survey itself and Samuelson’s follow-up writings are evidence that the Study doesn’t say that 75% of venture capitalist backed startups say that patents are vital to getting financing. For crying out loud, read the Survey! Read what Samuelson wrote! The authors of this article are the ones with the biases and are practically engaging in fraud. Either they horribly misread the Survey, they simply do not understand what it says and that they are comparing apples and oranges, or they are maliciously spewing falsehoods in an attempt to promote their own anti-patent agenda.

Perhaps someone should explain to the authors of this article that it is not at all inconsistent to say that patents are essential to getting financed, but some companies choose to not seek patents and are willing to make raising funds harder on themselves than otherwise necessary. It is, of course, also not inconsistent to hold the belief that patents only provide slight incentive to innovate. It is also appropriate to point out, however, that without patents there wouldn’t be ongoing innovation for most companies because they wouldn’t get the funds to continue to innovate, but that is another story for another day.

Many individuals, including yours truly, have been the authors up in comments to their Wall Street Journal article. In a response one of the authors wrote:

With regard to misleading and inaccurate statements on our part, we have talked regularly with Pam Samuelson, the co-lead investigator of the study for this article. Our piece reflects our understanding of her beliefs … We encourage you to talk to her directly if you want to hear her perspective.

So the authors of this Wall Street Journal article decided to rely upon what they perceive to be the beliefs of Pam Samuelson rather than rely upon what the Berkeley Survey itself says or what Samuelson actually wrote. Terribly unsatisfying in terms of a response.

Perhaps the most ridiculous thing the article stated was this: “The U.S. innovation economy has been harmed by low-quality software and business method patents, as well as a legal system that biases process and lawsuits over real invention. Speeding up this flawed process would be negligent.”

Speeding up the patent process would be negligent? This comment alone demonstrates that the authors have little or no working knowledge of the patent process or the part the patents play for the overwhelming majority of investors.

Clearly the Samuelson study shows that the overwhelming majority of those doing the funding require patents, so why would anyone want to make obtaining funding more difficult for themselves? Perhaps the authors should read what Dean Kamen has said about patents and investment. He has repeatedly explained that without patents there will be no funding. In fact, just 10 months ago the Wall Street Journal quoted Dean Kamen as saying:

You get this young guy who quit his job to make this gizmo and he shows up at the bank or to his father-in-law. The first thing the bank or that venture capitalist will say is, ‘Do you have a patent?’

The authors should also check the comment to their own article, which are far more accurate and intellectually honest than their own misguided commentary, despite the fact that they charge everyone else with bias. For example, Steve Perlman, OnLive founder, president & CEO, and who is best known for the development of QuickTime®, WebTV® and Mova® Contour™ facial capture technologies, wrote:

I have over 100 US patents, and over 100 pending, plus hundreds of foreign. Every patent I’ve filed has been specifically to support products I’ve been developing, primarily to secure venture funding and, after years of work in getting products to market, to prevent companies from cloning the products and undermining our ability to market them and get ongoing funding to evolve the products…

The USPTO backlog situation is appalling and deeply harmful to US innovation, and to say “Speeding up this flawed process would be negligent” reflects a core lack of understanding of how patents are used to create groundbreaking products in the US. There are a vast number of products that utterly rely upon patents. And, much of the US economy relies upon them. Setting money aside, many are lifesaving products that only will come into existence because of patents.

Perhaps the authors should take a look at the new Visualization Center and Patents Dashboard published by the United States Patent and Trademark Office just this week. On average it takes nearly 43 months to obtain final resolution from the Patent Office. If an appeal is necessary the average balloons to over 76 months. Those are not technologically relevant time frames to a patent or patent decision.

It is flat out irresponsible to suggest that speeding up the process at the USPTO would be anything other than one darn good idea, and practically essential to the resurgence of the US economy.  The authors and the Wall Street Journal should be ashamed of themselves.  We all should expect more from one of the Nation’s papers of record.

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 as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 47 Comments comments.

  1. Blind Dogma September 10, 2010 8:17 pm

    Sorry Gene,

    Just between us, it was me. My recent posting streak got the better of me and my Kool Aid sales were waaaaay down. I had to do something, so I contacted my friends and suggested that they jump on the bandwagon. I told them no one would bother checking facts (even using some of the gallant postings on these threads as proof that some people don’t let the inconvenience of truth get in the way of their agendas.

    Oh wait – this will be posted won’t it? Next call: damage control.

  2. Bobby September 10, 2010 8:49 pm

    @Blind Dogma
    Yet another mention of Kool Aid brings up a good question. What effect has the internet had on Kraft and the Kool Aid trademark? That could be a very interesting study. Mentions of Kool Aid have gone up perhaps a thousandfold, but not in regards to the actual product. Has it increased actual product recognition? Is the trademark in any kind of danger of being genericized? Do visitors of websites that are prone to mentions of Kool Aid drink more or less Kool Aid, and where does Flavor Aid, which was actually used in the Jonestown Massacre, fit in?

  3. David Koepsell September 11, 2010 3:56 am

    Seems to me the most telling part of this is that the survey reveals entrepreneurs’ perceptions about what venture capitalists prefer, since the survey was apparently done exclusively of entrepreneurs, and that the survey does not reveal the preferences of venture capitalists at all. Suggesting that based upon this survey, venture capitalists have some preference or another would be false, unless you disagree that the survey requested opinions of only entrepreneurs, and not venture capitalists.

  4. B Roberts September 11, 2010 9:47 am

    It is not black and white. Some technologies rely on delays to get licensees. Other could benefit from speed but there are ways around PTO delays. The real issue is how to be responsive to the particular needs of the users. Also, some small inventors and pro se’s simply need time to get investors and to do market research. So, a flexible system that does not pressure small independents seems like the best. In fact, I have always felt that the pendency was a congressional red herring.

  5. Gene Quinn September 11, 2010 12:33 pm

    B Roberts-

    It is true that one-size-fits-all is not helpful, and that is what the 3 track proposal is supposed to address. Having said that, I don’t know how you can say that pendency is a congressional red herring. Are you talking about how it used to be when RCEs reset the clock? Would you agree that 76 months on average when an appeal is necessary is excessive? How about over 25 months on average to a first office action? Those are the 2 numbers that seem to me to be extremely telling.


  6. Gene Quinn September 11, 2010 12:35 pm


    How come you NEVER address Dean Kamen’s comments? What about Steve Perlman? How about Hank Nothhaft? All are innovators, all have been extremely successful and all rely on investors.

    Your hit and run and ignore facts commenting is really a disgrace.


  7. David Koepsell September 11, 2010 1:14 pm

    @ Gene, because they are entrepreneurs and not VCs. I would be moved to hear what VCs want from surveys of VCs, but entrepreneurs who have succeeded in getting funding from VC cannot know what specifically motivated the VCs. They can guess, certainly. You miss the point if you continue to see the Berkeley Survey as offering anything more than insight into what entrepreneurs think moves a VC to fund them.

    and I am not hitting and running, nor ignoring the facts. Can you for once address the arguments without feeling the need to snipe at me? I’m beginning to sense some form of pathology with you.

  8. Dale B. Halling September 11, 2010 1:30 pm

    Patents are legal title to an invention. In countries where it takes 3-4 years to obtain title to real property, people live in slums. See economist Hernando de Soto. Countries with weak on non-existent patent laws live in technological slums. This is straight forward application of the economics of property rights in a free market.

  9. Blind Dogma September 11, 2010 1:45 pm

    Whoa, Dale –

    You make that too simple and people won’t be getting thirsty. Ease on back now.

  10. David Koepsell September 11, 2010 2:29 pm

    @Dale: I know de Soto, personally actually. We met first at the conference that precipitated this book in which I have a chapter http://www.amazon.com/Mystery-Capital-Construction-Social-Reality/dp/0812696158/ref=sr_1_1?ie=UTF8&s=books&qid=1284229271&sr=8-1 (the citation for my chapter is – 2008 “From Guano Islands to the Moon: Institutionalized Squatting and Property Rights,” in The Mystery of Capital and the New Philosophy of Social Reality, Mark, Smith and Erlich (eds.) (Chicago: Open Court).) and the book is available here, you might want to read it:

    As you should know, de Soto writes about property rights in real property, not IP. Here you can read about my work on expanding his theories to IP: http://www.law.ed.ac.uk/ahrc/script-ed/vol3-2/koepsell.asp
    You should know that one of the problems he has noted with real property systems is that access to trapped “landed” capital is often beyond the reach of the poor in the developing world due to expensive and labyrinthine legal institutions, and the institutions his institute recommends creating in those places do not tend to mimic western models. Instead, they build upon local knowledge, and tend to be particular to the culture and history. He has also never extended his work to IP, though we have discussed it, it is currently beyond what he is seeking to fix. But be that as it may, If you really agree with de Soto, you should then understand that simply mimicking western IP regimes in the developing world would be antithetical to his approach, could well perpetuate trapped capital, and would be in line with many of the mistakes of development work of the past of which de Soto is critical .

    Finally, IP is not property, as you sometime agree, but rather an exclusionary right over the practice of some useful art. There’s a huge difference, as many have tried to explain to you before, given the rivalrous quality of real property, and the non-rivalrous quality of the subject matter of IP. Your argument to extend de Soto’s notion to IP has significant missing premises.

  11. Bobby September 11, 2010 3:36 pm

    It takes quite a twist of logic to see patents as part of the free market. They are a means of creating artificial scarcity through the force of law, and you need a large, powerful government to enforce them.

  12. B Roberts September 11, 2010 6:18 pm


    Personal experience. Take house oversight out of the equation and hold an open roundtable to demand customer to define quality expectations and the system would self adjust. The problem has been moving targets that paralyze examiners and first line managers Reopening contract negotiations was a good start.

  13. Gene Quinn September 11, 2010 6:20 pm


    You say: “entrepreneurs who have succeeded in getting funding from VC cannot know what specifically motivated the VCs.”

    Of course this is incorrect, and I know you understand that. Entrepreneurs can certainly know when they are told, and they can certainly know that when they have been unable to obtain patents they did not get funding and they can know that when they have obtained patents they have obtained funding. The entrepreneurs you are now ignoring have hundreds or thousands of patents, have set up dozens of companies and you prefer to rely on the academic musings of those who have never innovated, never patented and never raised money.

    You do what you want, but just realize that your anti-patent nonsense will always be challenged and exposed for what it really is.


  14. Gene Quinn September 11, 2010 6:23 pm

    “The problem has been moving targets that paralyze examiners and first line managers…”

    Amen! I also think the hoteling program has been a failure. It caused an enormous brain drain. I hear more and more from patent attorneys that even SPEs seem inadequately trained and ill prepared to handle many issues. I haven’t had those experiences myself, but with so many stories from so many attorneys it deserves attention.


  15. The Mad Hatter September 11, 2010 11:42 pm


    Since Rupert Murdoch purchased the Wall Street Journal, the level of journalism has dropped dramatically. In my opinion Murdoch has been a disaster as a newspaper owner.

    He is also on track to destroy MySpace, which was once THE place for your band to have a page. I know a lot of musicians who are really unhappy with Murdoch and News Corp.


  16. David Koepsell September 12, 2010 2:08 am

    Funyy, Gene, you like ” academic musings” like the Berkeley Survey, when you (mis) interpret them to support your position.

  17. David Koepsell September 12, 2010 7:58 am

    @ Gene: … and as an attorney, you must surely understand the difference between knowledge and hearsay

  18. Gene Quinn September 12, 2010 4:35 pm


    Yes, I do know the difference between knowledge and hearsay, and I also understand that every piece of proof is disregarded by you for one crazy reason or another.

    Go ahead and keep your head in the sand if you like. You seem to prefer that to any kind of logical or fair debate.


  19. Gene Quinn September 12, 2010 4:36 pm


    You think I misinterpret the Berkeley Survey? Really? Perhaps we have figured out why you are always wrong on issue after issue. Obviously you either cannot read or you lack reading comprehension abilities.


  20. David Koepsell September 13, 2010 1:59 am

    From the Berkeley Survey’s abstract: “Surprisingly, startup executives report in general that patents are providing relatively weak incentives for core activities in the innovation process.”.

    And your statement : “clearly the study shows that the overwhelming majority of those doing the fundingnrequire patents…”. Which is not implied by the study at all. At best, the study which surveys the opinions of entrepreneurs indicates that they believe, or even that they were told, that patents were important. But as you know, this is hearsay and proof of nothing that you are implying it is proof of. A different survey would be required to offer the proof you allege in the Berkeley Survey.

  21. EG September 13, 2010 9:38 am

    “IP is not property.”


    Not true, at least in the U.S.

    35 USC 261: “patents shall have the attributes of personal property.”

    17 USC 201(a)(1): “The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.”

    Also, how would you characterize the “P” in “IP” if it isn’t “property.”

  22. The Mad Hatter September 13, 2010 10:14 am

    Also, how would you characterize the “P” in “IP” if it isn’t “property.”

    And here is the basis of the debate. Is the definition of property used in 35 USC 261 correct? Or should another definition be used? If another definition should be used, is there the political will to make the change?

    Let’s take a look from a different point of view. Seanan Mcguire is a friend of the family. Her fourth novel was recently published – one novel was published under the name Mira Grant which is why you see three on this page. She has two more which have been completed, but not published yet. Each novel costs her eight to nine months work.

    Another friend of mine holds a patent. The patent in question, cost him two weeks worth of effort.

    Should both types of ‘Intangible Property’ have the same value? Curiously the patent is worth more than Seanan’s copyrights combined. Obviously there are details I’m not covering here about the patent, because my friend doesn’t want to be named, and giving details would name him. He isn’t happy with the patent system, even though he is using it.

    How do we properly value creativity? If we value creativity improperly, it will cause economic damage, either by moving too much, or too little money.


    PS: Go buy Seanan’s books, she is a damned good writer. Her stuff written as Mira Grant are political thrillers set in a near future full of Zombies (and I’m not talking the ones in Washington or Ottawa).

  23. Gene Quinn September 13, 2010 10:19 am


    Why do you ignore the fact that without patents there is no funding? How much innovation do you think can occur without funding? With the financial plight governments around the world face do you still even today think that government funding is the answer?

    Interesting how you always want different proof. Do you know anything about evidence? Serious, sometimes it is impossible to believe you have any kind of law degree whatsoever. You don’t understand the first thing about evidence and proof. I keep coming up with pieces of evidence and then you continue to ignore them, always wanting something different but NEVER presenting your own evidence. You ignore history and the dramatic economic development that always is associated with third world nations adopting IP regimes because it is correlation and not causation, or some such nonesense.


  24. Blind Dogma September 13, 2010 12:01 pm

    Mad Hatter,

    You are conflating “value” with “Property”.

    Let’s say you own ten acres of wilderness in Montana, and I own ten acres of downtown New York City. Tell me again how your argumetn of “value” distinguishes the fact that we both own ten acres of land.

    Please move that gun barrel away from your eye.

  25. David Koepsell September 13, 2010 12:46 pm

    @ Gene, I’ll ignore your attempts to goad me further, they’re really quite silly. Sometimes it’s hard to believe that you aren’t just carcicature. I’ve litigated, tried cases, and do know the difference between evidence and proof, thanks. Your evidence consistently fails the the most basic standards both scientifically and legally. It’s funny how you totally skirted, for instance, my arguments and moved right on to something else right there. Indicative, I think, of your basic lack of substance in these debates. Do you dispute the contention in the Survey’s abstract? Do you dispute that the subjects of the survey were not VCs? Do you think that entrepreneurs have a better insight into what motivates VCs than VCs?

    @EG IP is not real property, and while the US code might make the transfer of artificial, exclusionary rights to monopolies over non-rivalrous, non-exclusive practice of an art, it doesn’t elevate that monopoly to the same moral status as rights to real property. The natural law basis for my arguments about the nature of IP are well-known, so I won;t repeat them here. Contact em if you want some reference for this contention.

  26. Blind Dogma September 13, 2010 1:58 pm

    EG, the Koepsell dance floor (“moral indeed”) is a thatway –>

    You will note that you must check reality on the way in.

  27. EG September 13, 2010 2:16 pm

    “IP is not real property”


    We could get into a “philosophical discussion” about this (lke the difference between “rights” and “privileges” in the 18th or 19th Century sense) but the fact is IP is recognized as “property” both by law and by society today, both here in the U.S. and around the world. If you want me to refer to IP as “intangible property,” that’s fine by me. But getting into semantics about what is “real” property doesn’t advance this debate.

    Also, using comments such as “artificial” and “monopoly” to describe IP are to me as perjorative as calling NPEs “patent trolls.” (Some authors/artist might also find your suggestion that copyright is “artificial” a bit upsetting too.) For example, I could call ownership of a particular piece of land a “monopoly” because no one else can own it. That doesn’t make it any less “real property.”

    I would suggest we can “agree to disagree” and move on regarding the debate over whether or not IP is “real” property.

    Regarding VC funding, my own empirical experience is that the absence of patent rights usually leads to no VC funding for an enterprise based on “new” technology. That’s what’s what I’ve heard from actual managers of VC, and it makes sense. VC funding involves a certain degree of risk-taking, and if others can copy your new technology at will (because you have no rights to prevent this happening), why invest in what becomes, in essence, a commodity market?

  28. The Mad Hatter September 13, 2010 2:53 pm

    You are conflating “value” with “Property”.

    Let’s say you own ten acres of wilderness in Montana, and I own ten acres of downtown New York City. Tell me again how your argumetn of “value” distinguishes the fact that we both own ten acres of land.

    Please move that gun barrel away from your eye.

    No, I was pointing out that different properties have different values. The value placed on a property often isn’t rational. If you don’t believe me, check some of the prices for items auctioned at Sotheby’s.


  29. David Kline September 13, 2010 2:59 pm

    “The condemnation of monopolies ought not to extend to patents, by which the originator of a new process is permitted to enjoy, for a limited period, the exclusive privilege of using his own improvement. This is not making the commodity dearer for his benefit, but merely postponing a part of the increased cheapness (or excellence) which the public owe to the inventor, in order to compensate and reward him for his service.”

    John Stuart Mill, “Principles of Political Economy,” 1848

    “The dawn of the right of inventors has been actually [contemporaneous] with the destruction of monopolies odious to the common justice of men; and the common sense of mankind has marked a distinction between such monopolies and the exclusive rights conceded to inventors. Their rights, under patents, are called ‘monopolies’ only from the poverty of language, which has failed to express in words a distinction which no less clearly exists.”

    Louis Wolowski, Chair of Industrial Economics, Conservatoire des Arts et Métiers, 1864

    “How can the exclusive right of an invention be compared with a monopoly in trade? How can the exclusive privilege to sell salt in Elizabeth’s time, which added not one bushel to the production, but which enriched the monopolist and robbed the community, and the exclusive right of Whitney to his cotton gin, which has added hundreds of millions to the products and exports of the country, be both branded, with equal justice, with the odious name of monopoly?”

    George H. Knight, 1891

  30. David Koepsell September 13, 2010 3:04 pm

    EG: “real property” refers to land, all around the world. IP is clearly not “real property.” Nor do I think it is philosophically defensible, but that’s another story.

  31. EG September 13, 2010 3:51 pm


    You missed my point completely: IP is viewed as “property” around this entire globe, whether you agree with that view or not. I only used the discussion about “land” to illustrate my point about the misuse of the term “monopoly” with reference to patents.

    Property rights are defined by law and society, not what someone’s personal philosophy is. I’m also frankly not interested in “philosophical debates” with you about whether IP is (or is not) considered “property” under “natural rights” doctrine. What matters is whether law and society defines IP as “property” and currently IP is defined as “property” around this entire globe. You may not lack that, but them’s are the facts.

  32. Gene Quinn September 13, 2010 3:53 pm


    Hard to believe I am not a caricature? Really? What is impossible to believe is that you know anything about law or science.

    Here is part of a review of Koepsell’s book “Who Owns You?”:

    “As a former biochemistry professor, I was annoyed by the author’s confusion as to the distinction between amino acids (the building blocks of proteins) and nucleotides (the building blocks of DNA), and his misuse of basic biological terms such as intron and monoclonal, but aside from confusing readers lacking a background in biology, these errors in nomenclature did not significantly affect the author’s subsequent philosophical exploration of gene patents. However, his fundamental misunderstanding of the basic tenets of patent law and, in particular his mischaracterization of the nature of gene patents, were critical to his conclusion that gene patents have created substantial ethical and policy concerns that ought to be addressed by banning this important category of patents. It is unfortunate that readers of this book sharing the author’s lack of expertise in the subject will come away with a seriously distorted view of what gene patents are and of their impact on society.”

    For the full review see: http://ndpr.nd.edu/review.cfm?id=17005

    David, the truth is that you are in way over your head, you know nothing about the science you write about, nothing about the law you write about and apparently nothing about evidence, business or common sense. Yet, you continue to take positions on matters you don’t understand, proving to everyone who is knowledgeable that you are nothing more than a pretender who is trying to hang on to forward your own career and misguided personal agenda.

    You are the one who is the fool, not me.


  33. EG September 13, 2010 3:54 pm


    Sorry, I meant “like” not “lack” in my last sentence.

  34. patent litigation September 13, 2010 4:43 pm

    The fact that the WSJ authors would publish a statement claiming that speeding up the patent examination process would be “negligent” speaks volumes. It shows that they have no idea what they are talking about. Period.

  35. Blind Dogma September 13, 2010 4:51 pm


    You describe but one of the filters at work here, each bearing the common thread of a lack of knowledge about patent law, and substituting feelings.

    It’s time to rewrite the high school curriculum.

  36. Jeff Lindsay September 13, 2010 10:24 pm

    Good article. I think the title needs revision, though. “Suggests Argues” should probably just be “Argues”.

    Thanks for helping to keep the WSJ honest, or at least a little more so.

  37. David Koepsell September 14, 2010 1:38 am

    Gene, I see you have once again deflected my queries with another attempt at a personal attack. How typical, when you lack argument, you get mean. Anyone can read holman’s review, or all the reviews, I have them linked from my website. The overwhelming majority are positive. I used to respect you, even invited you on TV with me, defended you to your many critics, and now, I have lost all respect. Your tactics are tawdry and childish.

    @eg. It’s interesting that the term. “real property” comes from the Latin res, which means thing, and used to apply to land and other tangibles. Sure, we could even call ghosts or souls, or imaginary numbers property in the law, but that wouldn’t make them any more real

  38. David Koepsell September 14, 2010 2:48 am

    VCs don’t fund anyone who doesn’t hold patents? Except when, in fact, they do. I would really be interested in a survey of VCs generally to see where they stand. Perhaps their views mesh perfectly with the perception of their views by entrepreneurs surveyed in the Berkeley study. We cannot rule that out. Above, I have only tried to note that Gene’s statement about what the Berkeley Study “clearly” shows doesn’t follow from the survey itself.

    (and Gene, I don’t need any of this to further my career, I have a tenured appointment, and excellent life, and a child on the way. I have all I could ever want or need, but I do believe firmly in the substance of the debate, and so I participate because I care about the issues.)

    I’m through with this site, though.

  39. Dale B. Halling September 14, 2010 10:46 am

    David, you prove your ignorance of the law again. Patents are title to an invention. An invention is a real thing. Title to land is no more or less real than a patent. There are no lines on the land to define its boundaries. The Indians were as confused about the idea of real property as you are about intellectual property. The boundaries of a patent define which real things fall within the title of ownership, just as title to land defines the parts of land that fall within ownership of the title holder.

  40. Gene Quinn September 14, 2010 11:12 am


    You have lost all respect for me? Why? All I do is point out when you are being intellectually dishonest and ignoring facts and discussing issues that you don’t have the training to comprehend. Those are not personal attacks, and the fact that you think they are tells me volumes about you, how thin skinned you are and about how insecure you are. My guess is that you know you are peddling nonsense and just don’t like it when I point that out.

    As far as me posting a book review, do you really think me pointing out what a distinguished member of the patent community, who is a distinguished educator and scientist, wrote is a personal attack. The fact is your book is wrong on virtually everything it says. You got the science wrong and you got the law wrong, so it is no great wonder that your conclusions are wrong. There is simply no way to get the inputs completely wrong and have the output be anything other than wrong.

    You need to grow up. If you are going to play in the big-boy circuit and spew fallacies you ought to be prepared to be called on it and ultimately exposed.

    In my opinion, you should go back to philosophy. You seem to have more aptitude at that because facts don’t matter there.


  41. Gene Quinn September 14, 2010 11:15 am

    “I have only tried to note that Gene’s statement about what the Berkeley Study “clearly” shows doesn’t follow from the survey itself.”

    And all I have pointed out is that you should actually READ the survey, because what I say, what Judge Michel and Hank Nothhaft said, is correct. Reading the cliff notes and critiques of something and then opining is reckless. I know you can read, and if you do read the Study there is but one inescapable conclusion, which is that the authors of the WSJ article are dead wrong.

    Congratulations on the baby! I do wish you and your family great happiness and smooth sailing. I expect this is an exciting time. Enjoy it to the fullest.


  42. Bobby September 14, 2010 1:03 pm

    “Patents are title to an invention. An invention is a real thing. Title to land is no more or less real than a patent. There are no lines on the land to define its boundaries.”
    The lines are created and don’t have complete marking, but there are clearly defined limits inherent in all real things, which is why call something that isn’t real abstract. If you buy an acre of land, you will have an acre of land regardless of what you and others do so long as possession doesn’t change hands (insignificant changes can occur due to plate tectonics and the perceived ownership might make minors changes with better surveying). However, with an invention, there can be ten million copies of an invention, all of which are covered by a patent, or not a single copy, and of course this number is bound to change over time, and in many cases it will change without direct involvement of the patent holder.

  43. Dale B. Halling September 14, 2010 1:11 pm


    Land does not have clear boundaries. Our ancestors fought each other tooth and nail over the boundaries of their land. Does ownership of the land include the mineral rights below? Does it include the ability to build a dam to retain water? Title to land has plenty of questions and uncertainty. Possession does not solve this problem, because you cannot be in physical possession of your land at all times. Possession does not tell a purchaser about liens. The problems are exactly the same as for intellectual property. You are confusing the property right with legal title and ignoring the clear historical record that land and personal property have exactly the same problems.

  44. The Mad Hatter September 14, 2010 2:08 pm

    Land does not have clear boundaries. Our ancestors fought each other tooth and nail over the boundaries of their land. Does ownership of the land include the mineral rights below? Does it include the ability to build a dam to retain water? Title to land has plenty of questions and uncertainty. Possession does not solve this problem, because you cannot be in physical possession of your land at all times. Possession does not tell a purchaser about liens. The problems are exactly the same as for intellectual property. You are confusing the property right with legal title and ignoring the clear historical record that land and personal property have exactly the same problems.

    Good one Dale! I’m sure we can all remember at least one case where neighbors came to blows over a fence line.


  45. Bobby September 14, 2010 2:49 pm

    Not all rights are always completely clear, particularly with land, and certain rights can be given to others under bargains or certain conditions, but the property is concrete and quantifiable in terms of how much matter is involved, which you can’t say for patents. That’s precisely why accounting refers to a patent as an intangible asset.

  46. David Koepsell September 14, 2010 4:07 pm

    @Gene: Holman’s review is contradicted by a number of scientists (including a Nobel prize winner), and even a few attorneys, and others who actually read the book and favorably reviewed it. All links are available, but people should of course judge for themselves. And thanks,having our child is the most significant thing ever in our lives, and we’re brimming with joy.

    @Dale: the title is to the type, not the tokens, as patents attorneys around the world know. This is in contradistinction to real property, where the title is explicitly to the token.

    anyway, peace out. DK, over and out. It’s been surreal.

  47. EG September 21, 2010 7:49 am


    Here’s an articel noted on Pete Zura’s web site that suggests a big connection between patenting by start-ups and VC financing: http://www.fma.org/NY/Papers/Cao_Hsu_InnovVC_Version1_20100112.pdf