Posts Tagged: "anti-patent"

The label “anti-patent” is not meant as a criticism or insult. Instead I mean it is a purely descriptive way that recognizes a distinct and very real viewpoint; one that we have seen periodically throughout history but which is inconsistent with what the Framers believed. Therefore, I disagree with Judge Chen that it is not helpful to recognize that there are Judges on the Federal Circuit who, based on their written decisions, show a tendency to eschew a pro-patent viewpoint.

Without a competitive advantage sane people do not invest money in even simple gadgets, which is why it is extraordinarily difficult to get a licensing deal without a patent, and why the first question investors ask is about your patent position. As celebrated inventor Dean Kamen has said, “[t]he first thing the bank or that venture capitalist will say is, ‘Do you have a patent?’” This is the common experiences shared by everyone in the industry. Those who say it isn’t so are simply not credible.

One just thinks of the fact that five years ago Blackberry was the industry standard, dominant forever, and now it is basically exposed to ridicule because virtually it’s dropped to third or fourth on the distribution list. You look at the rate of technological progress between then and now, it just doesn’t seem in any way, shape or form to have been slowed down so it seems to me that in face of rapid technological advance to say that the current system is a disaster is a mistake.

In a recently published Forbes.com article titled”The Federal Circuit, Not the Supreme Court, Legalized Software Patents,” Lee doubled down with his absurd and provably incorrect assertions regarding the patentability of software patents. But he also more or less sheepishly admitted that his reading of the most relevant case is not one that is widely accepted as correct by anyone other than himself. He wrote: “To be clear, plenty of people disagree with me about how Diehr should be interpreted.” Thus, Lee admits that his primary assertion is one he created from whole cloth and contrary to the widely held views to the contrary. Of course, the fact that his radical views are in the minority was conveniently omitted from his ?Ars Technica? article. If Lee has any integrity he will issue a public apology to the Federal Circuit and issue a retraction. If Lee doesn’t come to his senses and do the right thing in the face of overwhelming evidence that he is wrong then Forbes.com and Ars Technica should step in and do what needs to be done.

Indeed, few articles have struck a nerve in me quite the way that a recent Ars Technica article did. The article is titled How a rogue appeals court wrecked the patent system??. It is a cheap shot, factually inaccurate and embarrassingly incorrect “news” story that concludes the Federal Circuit is at the heart of all the problems in the patent system. A real Pinocchio tale. Ars Technica? should be ashamed at having published such an inaccurate attack piece. If they are not going to properly vet articles in advance of publication then what have they become? Little more than an online technology specific version of those tabloids with the salacious headings. The patent system is far to important to the U.S. economy and our way of life to suffer from that level of journalistic ignorance and bias.

The moral of the story for those in the anti-patent community is this: get a clue! Why not do something radical like becoming informed on the topics on which you pontificate? Treating patents like they hold up innovation is ridiculous. You need to re-calibrate your definition of innovation and stop pretending that those who copy are innovators. That is insulting and extraordinarily disingenuous even for folks who are constitutionally challenged by the truth. Doing what someone has already done is NOT innovative. It is the antithesis of innovative. It is copying. It is infringing.

So Twitter can use the donated patents “defensively” to initiate a lawsuit if they feel threatened? If they deem it is otherwise necessary to deter a patent litigation? So Twitter can be the aggressor with the donated patents, and it seems like it is their sole discretion whether the threat or “otherwise” caveat are activated such as to allow them to go on the offensive. Incidentally, and interestingly, Twitter will have “all rights to recover damages for infringement…”

The mutually assured destruction approach to patenting can explain in part why large companies continue to patent at the rate they do, but the justification completely misses the point that these large tech giants were not always large. They were, at one time, rather small companies that pursued an aggressive agenda of innovation. A big part of that innovation strategy included obtaining protection for said innovation, largely in the form of acquiring patents. That undeniable truth makes it hard not to question whether the tech giants that lament the failings of the patent system and want to limit or abolish it are simply engaging in good old-fashioned protectionism.

Listening to those who code complain about patents is nearly hysterical. They still haven’t figured out that by and large they are not innovators, but rather merely translators. Perhaps that is why they so frequently think that whatever they could have come up with themselves is hardly worthy of being patented. Maybe they are correct, but that doesn’t mean that an appropriately engineered system isn’t patentable, it just means that those who code are not nearly as likely to come up with such a system in the first place because they rarely, if ever, seem to approach a project as an engineer would. Rather, they jump right in and start coding. In the engineering world that is a recipe for disaster, and probably explains why so much software that we pay so much money for today is hardly worthy of being called a beta, much less a finished product.

Carrier goes on to detail the comprehensive research of Professor John Walsh who in 2007 surveyed 1125 biomedical researchers in universities, government labs and nonprofit institutions. Walsh received 414 responses and the responses were overwhelmingly clear. Carrier explains that only 3% of respondents indicated that they stopped pursuit of a research agenda based on an excess of patents present in the space. Furthermore, Carrier explained that a mere 5% of respondents even regularly checked for patents related to their research and “no respondents reported that they had abandoned a line of research because of a patent.”

The latest edition of Fortune magazine has John Roberts, Chief Justice of the United States Supreme Court, on the cover proclaiming the Roberts Court to be the most pro-business court we have ever seen. So how can it be that the Roberts Court, which has shown hostility toward innovators and contempt for patents that is unusual, is considered pro-business? On top of that, the Roberts Court seems poised to strike at the very heart of the patent right granted by the United States federal government; namely the presumption of validity. That sure doesn’t sound very pro-business to me.

You just couldn’t make this stuff up. A team of humans creates genetically altered and a self-replicating synthetic cell using a computer. I suspect that computer was running some pretty powerful and sophisticated software. So the anti-patent crowd should be sufficiently whipped into a frenzy over this story top to bottom. It hits all the hot button issues, life, genetics, software, ethics and it rolls them all into one. But while we might relish the anguish of those in the anti-patent community, this type of scientific advance should not be taken lightly because it has the potential to fire up those with an anti-patent agenda and could also fire up religious groups as well. The coming together of such strange bedfellows would result in an alliance with enormous political power. So innovators need to pay attention and be vigilant.

Earlier today Dale Halling, of Halling IP and State of Innovation Blog, brought to my attention an article on the IAM Magazine Blog from a few weeks ago. Joff Wild of IAM blogged about a study conducted by IPVision, Inc., which focused on analyzing the intellectual property positions of over 9,000 US venture capital backed technology companies. The study was…