Patent Law

Distortion

By Gary Odom and Jordan Kuhn

"Patents are not ordinary assets; they are options to litigate. While patent lawyers and other intermediaries benefit directly from the scope and scale of IT patents, that volume represents potential liability for companies that market useful products. Most patents belong to others, and the sheer volume obscures the patent landscape, limits the ability to evaluate patents and inevitably leads to inadvertent infringement." - lobbyist Ed Black of the Computer and Communications Industry Association, in the Silicon Valley Mercury News.

Let's examine Ed's foregoing statement. "The sheer volume obscures the patent landscape." Untrue. Patent Hawk provides freedom-to-operate research results for a few thousand dollars in any IT area. The fact is that companies don't go looking. There's a problem. Patents, which could stimulate further innovation, go unappreciated. The IT sector's approach to patents is head-in-the-sand stupid.

Example. Gary Odom invented active tool groups in 2000. His employer, who had Microsoft as a client, didn't want to know about Odom's patents. Odom told Microsoft in 2004 he had patents. Microsoft didn't want to know. So they spent literally hundreds of millions reinventing what Odom had already invented, and would have told them how to do it if only they had been willing to listen. All because Odom had protected his invention with a patent.

Microsoft put the invention in Office 2007. Now they'll fight paying for a license until all appeals are exhausted. Blackberry maker RIM did the same thing against NTP, maximizing its damages by several orders of magnitude. It's the arrogant testosterone talking.

Black noted that "patent litigation is extremely costly." But he didn't say why. The only reason "patents... are options to litigate" is because corporations abide no negotiation without litigation.

Black: "What creates economic value is genuine innovation, not a lottery system for patent applicants." So, to Black, a patent is not a "genuine innovation." "Real innovation requires major investments in design, code, integration, testing, manufacturing and marketing as well." Black equates capital investment to innovation. Only deep-pocket corporations can innovate is what Ed Black is saying.

See if you can make sense of this. Black -

Presently the threshold standard of invention is keyed to what the person of ordinary skill would find obvious. But there is only a limited role for ordinary skill in today's intensely competitive global economy, and American leadership today depends on extraordinary, not ordinary, abilities and achievements. At least in the IT sector, the patent system needs to be recalibrated to support the extraordinary, rather than cranking out options to litigate.

Flag-waving, articulate rubbish. Sounds like Justice Scalia on a verbal bender.

Rhetorical psychotic episodes are truly scary. Erudite authors twist reality, knowing that those less informed will grant credibility to the concepts because the words are so well put. While the fact base is beyond knowing, the logic just slightly beyond grasping, the point is appealing, even compelling, if it somehow rings true. A sense of understanding is a strong need, however false the sense is. Hence folks clinging to..., well, like President Obama said on the campaign stump. Desire to make sense of something often leads, like a junkie getting a fix, to simplification beyond sensibility. Hence Ronald Reagan's abiding popularity. Donn Piatt once said, "There is no tyranny so despotic as that of public opinion among a free people."

Ed Black is a dangerous man. To prove the point, let me graciously give him the last word.

As a tech trade association that represents both patent holders and users, we support the patent reform bill and even wish it went further. Eventually, we must address the need for higher standards, so we don't have the plague of trivial patents obscuring and blocking the use of high-quality technology. The only real solution is to raise the basic standard of what is a patentable invention.

Full post as published by The Patent Prospector on March 16, 2009 (boomark / email).