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« Court Report | Main | Senate Patent Reform Legislation -- One Old Bill and One New Bill »

August 10, 2008

Comments

Kevin,

Nice responses to Mr. Surowiecki. I just wanted to let you know that we (or at least I) in the patent bar are with you on this one. So my comment about the anti-commons rhetoric "doom[ing] this country's remaining competitive advantage, namely innovation" is considered "hysteria" eh? May be Mr. Surowiecki should consider the comment made by Judge Chen (I believe that's his name) of China who wondered why this country wanted to put itself at a competitive disadvantage by weakening our patent laws through so-called Patent Reform Legislation. If those outside this country recognize that weakening out patent laws puts us at a competitive disadvantage, why is my view "hysteria"?

Like my dad before me (a former patent examiner and patent attorney), I'm not pro-patent but pro-patent system. Sure, as you astutely point out, we could earn more money with all the nonsense that so-called Patent Reform would bring, but I, like my dad, just want patent system that fairly rewards innovation, not so screwed up that the Davids of Innovation haven't got a chance against the Goliaths of Industry. Even the Soviet Union recognized a system of altruism (without patent protection) didn't work in the 1920's (I wrote a college thesis on the history of innovation in the Soviet Union). The only ones who benefit from a weak patent system are the Goliaths of Industry, not the David's of Innovation.

BTW, I find it interesting that Mr. Surowiecki comments on the airplane patent pool in the early 20th century. And yes, the Wright Brothers (only Orville by then) were a party to that pool. I just finished reading a biography on the Wright brothers, and they recognized the value of patents to them in trying to sell airplanes, versus Curtiss and others who used every trick in the legal book to stall against the Wright patents. And I would hardly call the Wright Brothers "Goliahs."

EG:

I believe you are thinking about Mr. Yongshun Cheng, a former Senior Judge and Deputy Presiding Judge of the Intellectual Property Division of Beijing High People's Court, who wrote about the House patent reform bill last December. Mr. Cheng stated that the proponents of patent reform desired "a weaker patent system, or one that benefits companies that do not rely on patent protection to obtain market dominance." Our article on Mr. Cheng's piece can be found at http://www.patentdocs.net/patent_docs/2007/12/chinese-ip-judg.html.

Don

Don,

Thanks, that's the one.

As a patent attorney "deeply invested in the game" and being "incapable of objectivity," I would like to be unabashedly selfish and suggest a solution that will solve the supposed "permission problem," and simultaneously create a patent arms race that will be in my financial self-interest.

In addition to having patents convey a negative right to prevent others from practicing the invention, let them also convey a positive right to practice the invention. So, if a patentee has a patent on A+B+C, and his competitor has an earlier patent on A+B, the patentee is immune to suit from the competitor. The competitor can still enforce his claim to A+B against others who fail to innovate and just want to copy the A+B innovation. In other words, no dominant patents. So, if you encounter a patent thicket, you can just innovate your way over and above it. But the market players who want to gain dominance in the market place without innovating will be out of luck.

Dear Broje:

While I think your suggestion will create some new problems (such as the converse of nonobviousness, "how much" innovation works, i.e., when is "C" not trivial), it is an excellent example of thinking "outside the box."

If you would like to flesh out the idea a little and have us post it for you, just let us know. It is intriguing.

Thanks for the comment.

The comments to this entry are closed.

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