Wednesday, February 14, 2007

2007 Patent Reform - It's Off To An Ugly Start . . .

The U.S. House of Representatives Committee on the Judiciary is organizing the Subcommittee on Courts, the Internet, and Intellectual Property for oversight hearings this Thursday (2:00 PM) on patent reform.

The title of the hearings pretty much says it all: "American Innovation at Risk: 'The Case for Patent Reform.'” The current list of witnesses, and their linked testimony, includes:

  • Adam B. Jaffe, Professor of Economics and Dean of Arts and Sciences, Brandeis University Whaltham, Massachusetts (view prepared testimony here)
  • Suzanne Michel, Chief Intellectual Property Counsel and the Deputy Assistant Director for Policy Coordination Federal Trade Commission Washington, D.C. (view prepared testimony here)
  • Mark Myers, Co-Chair of the National Academy of Sciences Report Patent System for 21st Century Unionville, Pennsylvania (view prepared testimony here)
  • Daniel B. Ravicher, Executive Director Public Patent Foundation New York, NY (view prepared testimony here)
The testimony of Myers and Michel lay out the conventional case for patent reform: quality issues at the PTO create uncertainty, trolling litigation exploits the uncertainty, and the lack of challenge mechanisms on validity propagate the uncertainty. Thus, the following reform measures were highlighted
  1. increase scrutiny (i.e., "second pair of eyes") and funding for PTO examination;
  2. provide post-grant opposition to challenge questionable patents;
  3. tighten standards on obviousness and willfulness; and
  4. provide safe havens for prior user rights and research exemptions.

One interesting note on Suzanne's testimony is that she resurrected the "preponderance of the evidence" standard for invalidity which was recently recommended in the FTC's 2002 report on patent policy. Other than noting this recommendation, Suzanne didn't pursue this further in the testimony.

The testimony of Jaffe and Ravicher, however, is another matter. With all due respect, it's just over the top. Some of the testimony is inaccurate and misleading (the USPTO has an 85% allowance rate? Really?) some of it is simply untrue ("through a quota system, patent examiners are given more credit, and evaluated more favorably, if they issue, rather than reject patents"), and some of it is just bizarre. Take this, for example, when Ravicher compares bad patents to condemned prisoners on death row:

[l]itigated patents tend to have a much greater significance to the public, on average, than non litigated patents. To draw an analogy, if 35% of the people on death row who challenged their convictions were actually proven innocent, that wouldn't necessarily mean that 35% of all people on death row, much less 35% of all convicted criminals, were actually innocent (that ratio could be higher or lower), but the severity of each mistake regarding someone on death row is extreme nonetheless. Similarly, the technology involved with litigated patents is almost without exception extremely valuable, so any mistakes regarding the validity of those patents can cause severe harm in and of itself, regardless of the validity rate of issued patents in general.

Of course, the call for banning software and business method patents is urgently argued, as well as reducing wilfull infringement strictly to cases where direct copying is proven. In short, the patent world, according to Jaffe and Ravicher, is populated with good guys and bad guys - and the bad guys are people who dare to exclude others, who purport to have good intentions, from technological advancements.

This is not to say that their testimony is wholly without merit, because they do make a few valid points. However, the rhetoric is simply too much, and frankly, is getting a little old.

5 Comentários:

Anonymous said...

I think that the software patent discussion should include mention of the efforts of groups like Xerox's Powerset company. This company has invested in three decades worth of research in order to provide significant advances in natural language technology.

This investment was evidently motivated by protections afforded by the patent system. Thus the argument for software patent protection as a means to encourage noteworthy innovation can be applied here.

Anonymous said...

Strange, I have friends working and researching search and natural language and none never felt the urge to search for knowledge in patent databases.

Do you know how little software patents are used for licensing in their specific domain, rather than as defense or bargaining cross licenses in large numbers?

The quality in patents make all the difference for the market. Running a low quality game as in the vast majority of software or business method patents is more of hostage taking than protecting innovation.

Did Microsoft ever say what patents they have that cover GNU software in the Novell deal? Its not strange that they didnt. If they did, they would have to stand ashamed.

Please tell, what proof do you have that patents promote innovation in the case of parc xerox more than that they have been researching for so very long?

For a larger look at the problems, please look for the FTC hearings or the new paper from Ben Klemens. Great stuff!


Anonymous said...

At the Santa Clara University School of Law's Tech LawForum site we've posted a video of a presentation Dan Ravicher gave in October, for those interested in evaluating how he presents his core arguments.

Anonymous said...


Maybe your search and natural language friends might "feel the urge" to glance at these:

"PARC has spun off a number of companies to commercialize more than 100 patents in this area. The current PARC portfolio contains more than 40 active issued and pending patents covering our most recent natural language processing research.

PARC and Powerset recently signed an exclusive licensing relationship and collaboration agreement to develop and commercialize consumer search technology – distinctly different from the current, non-linguistic search processing models in use, natural language search typically leads to more accurate and effective search results.
PARC spun off Inxight Software, Inc. to commercialize more than 70 PARC patents. The company provides scalable, multilingual information-discovery solutions to customers such as Boeing, Charles Schwab, Deutsche Telekom, Eli Lilly, Factiva, GlaxoSmithKline, Korean Telecom, LexisNexis, MCI, Merrill Lynch, Microsoft, Oracle, PricewaterhouseCoopers, Reuters, SAP, Yahoo, and various U.S. government agencies."

Running a low quality game is a true indictment of the PTO's past history and of those participating in the practice.

It has no bearing, however, on difficult problems being solved, software or otherwise, via the encouragement of patent protection.

Anonymous said...

I had no idea that the government was trying to change the rules on patents. When I heard that The Patent Reform Act o 2007 was going to change the rules from "first to invent" to "first to file", I knew I smelled a rat. Then I read that the barrier to entry was increased as well. It seems to me that Microsft, Cisco, Intel, HP and the other big companies just want to take people ideas and not have to pay when they are caught. It seems to be heating up in Orange County, CA. There was an article about it on the 17th and then an Op-Ed yesterday by Kevin McDonald a computer executive type. It seems to me that they tried to slip this one under the radar. Not that there hasn't been an issue for some time, just that the solution was a major win for the big companies and a ripoff of the little guy. I read about the constitutional protections and it says to protect inventors, not filers.

This Op-Ed was pretty straight forward. It made me want to find out more anyway. I put the link just in case.

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