There is an article by my colleague from the law school Scott Kief and Henry Smith arguing that there is no patent crisis. They don't have any data to back this up. They are very concerned about predictability. Here is a modest proposal: do away with patents - then it will be perfectly predictable, all litigation will fail. they do have some remedies - while I disagree with them about patents I think their remedies are generally better than those under discussion in Congress. In particular removing the presumption of patent validity seems a useful thing to do.

Stephen Mihm writes an illuminating review of a book called The Industrial Revolutionaries; the Making of the Modern World by Gavin Weightman link here. He quotes the book, "Abraham Gesner, a country-doctor-turned-geologist in Nova Scotia was the first person to figure out how to transform the raw sludge of fossil remains into kerosene and other fuels. He effectively laid the foundation for the modern petroleum industry but steadfastly refused to take full credit for his discoveries, writing in 1861 that 'the progress of discovery in this case, as in others, has been slow and gradual. It has been carried on by the labors, not of one mind, but of many, so as to render it difficult to discover to whom the greatest credit is due.'"

Weightman's book seems to be a riff on that point, writing a history of industrial innovation around the world in the 19th Century. He fails, however, to draw the conclusion that we here would: that no single innovation stands alone or justifies patents which actually end up impeding innovation rather than their constitutionally mandated justification, promoting it.

One of the things I get depressed by is the growing spread of IP protections around the world. Here is another one involving South Korea and Russia. "South Korea and Russia have agreed to launch a fast-track patent review process in November to speed up the process of securing intellectual property rights protection for companies and individuals, officials here said Tuesday." link here The story reports a similar fast track procedure for reviewing and granting patents that Korea has with Japan, with the US, Denmark, Britain, and prospectively with Canada and Germany, Ukraine, Belarus, Azerbaijan and Kazakhstan.

Fast-tracking sounds good, like greater efficiency in government, but the downside is that there is no fast track for reversing patents once granted. It provides patent holders with a long stream of monopoly profits and fees from licenses. Never underestimate the power of a big patent troll up against small entrepreneurs and inventors.

Rare good news link here. The Canadian Patent Appeal Board ruled against business method patents in a case involving Amazon's one-click patent. Usually, US patent holders with the support of our federal government are able to muscle other countries into applying similar legal standards.

The ruling included this statement, "since patenting business methods would involve a radical departure from the traditional patent regime, and since the patentability of such methods is a highly contentious matter, clear and unequivocal legislation is required for business methods to be patentable."

The Canadian ruling comes at a time when the US Supreme Court has accepted a case on the same basic question. The Canadian ruling is important for opponents of such patents because it will be harder for the US to rule differently. I do not go into the merits of the patent as it raises all the usual questions about prior art and obviousness to which so many take exception--just not the courts and the patent owners.

The paper is here. I suppose the message is: "the system works sort of."

Excluding business and financial methods per se from patentability, although perhaps desirable, is not really feasible given the difficult of defining what they are. Even at the EPO, where there is a general exclusion, such patents do exist whenever the invention solves a particular technical problem. The language in the recent Bilski deiciosn in the United States seems to move in that direction, and to exclude those patents with overbroad and vague cliams which are perceived by many to be the main drag on the innovative system.

You can find more of her research on patents here.

Opinion: Engineers should stage a patent strike

Rick Merritt (04/20/2009 12:00 AM EDT)

It's time for engineers to stage an intellectual property strike.

Stop filing patents. Refuse to sign employment contracts that give your employer sole title to your inventions. Don't participate in any due diligence efforts on patent portfolios.

Engineers need to organize if this IP strike is to be effective. That will require creating a new organization.

Existing lobby groups on patent issues in the electronics industry represent the views of specific sets of companies, not engineers. Even the IEEE is so diversified in its base that it admits it has not been able to form a crisp consensus on issues like patent reform.

Don't get me wrong. I am not saying engineers should stop work in the midst of a recession of historic proportions. I stand with those who say we design ourselves out of downturns by creating compelling products. What I'm saying is, hands off anything to do with patents.

I admit this is an extreme position and one engineers are unlikely to take up, but that doesn't mean a patent strike is the wrong thing to do. In fact, it could be very right.

The patent system is broken, and someone needs to call attention to that fact to spark real change. As the creators of the technology, engineers have the power to command that attention, if they choose to use it.

This is a historic moment to send a message that the patent system needs fixing, because influential leaders are listening. Patent reform is front and center in Congress, and an administration that ran on change is poised to appoint a new director for the U.S. Patent and Trademark Office.

Patents are supposed to capture innovations in ways that compel engineers to read them. They are meant to spur designers to creative action, inspiring them to develop novel work-arounds or to license ideas that are too good to pass up.

Sadly, the reality today is just the opposite. Bad policies and practices have coalesced around patents. In this week's cover story, we call it mad patent disease [].

Corporate legal departments tell engineers which patents they can and can't read. Sometimes engineers are told not to read patents at all, lest they be accused of deliberately infringing someone's IP.

Meanwhile, businesspeople of all stripes pressure engineers to file patent applications for every idea. That has spawned a business of litigation and licensing that charges for portfolios by the pound. Companies now wield patents strategically to charge others for the freedom to innovate. In this sick world, patents don't spark innovation, they inhibit it.

Quantity has replaced quality, and that has created a mess. Legal departments settle infringement cases in part because they can't afford to pay anyone to provide informed opinions about all the patents asserted against them. Thus, portfolios that contain a lot of junk can still command a premium.

As the premiums rise, more people file more patents to defend against the madness or to get their share of the IP bucks. The result is a patent office up to its ears in a backlog approaching a million applications, sitting in a pile three years deep.

Patents should have a reasonable value for their owners and users. They should be available to all on a timely basis so they can encourage innovation, not stifle it.

Engineers need to speak up in a loud and clear voice about what's wrong. If they don't, I suspect the lawyers and corporate managers who have gotten us into today's mess will continue to build on the upside-down bubble market for patents they have created.

I missed this story when it appeared, but it seems to sum up the current patent situation so well, that it is worth revisiting now link here. Ryan Paul wrote it for Ars Technica as a review of a speech by Rob Tiller, Vice President and Assistant General Counsel at Red Hat, at the Southern California Linux Expo.

While the emphasis is on software patents, the same criticisms apply to the whole category. What to do? I do not expect us to be delivered of this plague by the courts with their seeming vested interest in perpetual litigation, also known as the full employment act for lawyers and judges. Congress and the White House then, are the only hope, a conclusion that Larry Lessig also reached. Talk to your representatives.

Lincoln the Patentee.

Through Open Access News, we learn that offense is the best defense against bogus patents. Indeed, it appears people seem to be patenting traditional Indian medicine, inducing India to incur large costs for challenging these patents. By making a database of traditional medicine available to patent offices, this should not be possible anymore as prior art is easier to establish.

In Patent defendants aren't copycats. So who's the real inventor here?, a great post by IP Reporter Joe Mullin, Mullin describes a new study that shows that most defendants in patent cases are never even accused of copying the plaintiff's patent.

I replied:

Joe,

Great post. A few comments.

First, you're right that the public thinks it's about copying; and they are wrong. Likewise, most proponents of IP (outside the self-serving patent bar) seem to have no idea about the details of patent law, yet support it anyway.

Second, the reason copying is not alleged is that, as you note, it's irrelevant. And it does not demonstrate willfulness, nor does willfulness require copying. Willfulness means you made a product that infringed on a patent, even after you knew about the patent. But this could happen even if you independently invented your product yourself, then find out about the patent (say, you get a C&D letter), adn you keep selling your product anyway--you're willfully infringing from that point on (so that means damages can be trebled for sales made while willfully infringing). So, copying is not necessary to show willful infringement.

It's also not sufficient. You might have heard about pinch-gestures on a touchscreen and you put that feature in your product, thus infringing apple's patents, albeit unwillfully, since you didn't know about the patents.

So, I don't think you can conclude that most patent suits don't involve copying just b/c copying is not alleged or proven at trial. There might be copying in 25% of the cases, but it's only alleged 2% o the time, say. This is b/c when you sue someone for infringement you have to show (a) you have a patent; (b) they are selling a product that contains all of the describd elements in one of the patent's claims. Copying is irrelevant.

(Still, I agree that copying is probably present in only a small minority of all patent infringement cases.)

Third: your article makes it clear that it's unjust that there is no independent inventor exception. Your piece does not mention, I think, the fact that the worst injustice of all is that not only is there not an exception for someone (A) who later independently invents the same thing that B invented first and patented first--there is not an exception even if A FIRST invented it. (It's true that if A invents first and B invents second, and if B files for a patent, then A later files for one, then A wins, in an interference battle or litigation; but if A never files but sells his product using a secret process, say, then after a year he is barred from filing a patent; but B is not.) So if A has a chemical plant using a trade secreted nozzle or mixing method to make some chemical for 50 years, and finally B independently invents the same technique and patents it, he can shut down A even though A invented it first. A general "prior use" defense is what is needed in these cases.

But the prior user defense and independent inventor defense are of limited value for a few reasons. 1. It's hard to prove, esp. for later invention, that you invented it independently, without being influenced by B's patent (which is public, and presumed to be "constructively known" by all); which is why some companies employ the "clean room" approach, but this is expensive and not usually feasible.

2. Once you know about B's patent, you are now unable to invent it on your own, even if you "would have" in the absence of B's patent. I.e., the independent inventor exception largely evaporates soon after a successful product (such as the iPhone's multi-touch) because by then everyone is "contaminated" by it (no cleanroom possible any more).

3. If B invents and patents something, and if A also invents it (earlier or later than B), then this by itself ought to show that the invention was probably obvious (an idea whose time had come) and B's patent should be invalid in general, not just a defense for A.