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Robert J. Sayre
Robert J. Sayre
Cambridge, MA,
United States

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This American Life on Patents

  
  
  
  

by Robert J. Sayre

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"This American Life" on NPR is a great show; and I was quite surprised (and delighted) to see that their most-recent episode focused on patents, "When Patents Attack." Give it a listen, as the program is certainly thought-provoking and offers some interesting insights, particularly with respect to patent litigation in the Eastern District of Texas. I was also delighted to hear my WIPO-teaching colleague, Tom Ewing of Avancept, featured as an expert on Intellectual Ventures (starting around the 40-minute mark).

Nonetheless, as is all too typical, the program is off-target in at least some respects when blasting the patent system. Citing ridiculous patents certainly is popular sport, though it seems no one ever actually reads the purportedly "ridiculous" patents that are cited. For example, when speaking with a so-called, expert, David Martin, they quote him lambasting US Patent No. 6,080,436, entitled  “Bread Refreshing Method” (issued in 2000), as covering the making of toast. Well golly gee, wasn't toast already known and doesn't this show how ridiculous and out-of-control the US Patent and TM Office is? Yup, . . . and they move on.

Except it isn't true. A quick look at the claims will tell you that. Among other limitations, claim 1 of this patent requires "setting the temperature of the heating elements between 2500 F. and 4500 F." Does your toaster operate at 2500 degrees Fahrenheit or above? Here's a hint: most traditional heating elements would melt in that temperature range. So suffice it to say that's not a traditional toasting temperature. Maybe the patent is valid or maybe it isn't; but if someone (even respected media) tells you that toast was patented in 2000, well, they're dead wrong, though it does make for compelling press.

Getting to the heart of this episode, though, the program calls into question the ethics of "non-practicing patent holders." Should someone be able to obtain a patent, not practice it, and instead merely try to license the invention to a bigger entity? As a general principal, yes, the inventor absolutely should have that right. The inventor is often not the best person to take a product to market. Many inventors do not have the skill set or resources to mass produce a popular invention, themselves. And, like it or not, we live in a world where ideas, alone, are commodities of value--true inventors should be rewarded whether they bring the invention to the market or whether someone else does. This framework allows for greater specialization and focus.

Of course, sometimes patents are wrongly issued, as the examiner is human and may not always find the best prior art. Over 7 million patents have been granted by the US Patent and TM Office, so no doubt that at least a few stinkers have slipped through; and the patent system will, of course, have to adapt to a rapidly changing marketplace. Though any suggestion that obtaining a patent is easy is patently false, as only a minority of US patent applications are allowed without receiving a final rejection.

Does Intellectual Ventures provide a net benefit to society? Having no direct interactions with them and never having evaluated any portion of their patent portfolio; I, frankly, do not know. Regardless, we need not look far to find many other patent-licensing entities that do provide a clear benefit--our nation's universities, which spin an extraordinary amount of new technology out into the marketplace to drive our nation's economy--though big media would rather focus on "trolls." The patent system certainly isn't perfect, and the results aren't always fair. Though somehow the wonderful stories of inventors living the American dream of capitalizing on their patented inventions seem to get less press than ridiculous suggestions that the US Patent and TM Office is issuing patents on traditional breakfast items here in the 21st century. Sigh, . . . perhaps I need to acclerate my blogging again to share such stories for balance.

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Comments

Certainly the patent system, like any other, has flaws as well as bad actors; but this doesn't strike me as a good enough reason for throwing out the baby with the bathwater and completely trashing a system that has given us the steel plow, cotton gin, and light bulb. Rather, it speaks to me of the necessity of addressing the patent troll issue. For one thing, trolls on average win 3 times more than practicing entities in patent litigation; removing this incentive of an oversized payday could go a long way toward reducing the number of trolls. Also, more corporations might look into obtaining the services of a patent aggregator or exploring the option of patent reexamination when hit with a patent infringement suit.
Posted @ Monday, August 01, 2011 10:32 PM by patent litigation
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