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July 31, 2013



A great expose on the nonsense of the "anti-commons" being fostered by the media and these so-called "experts." Hall epitomizes those "talking heads" whose credentials to speak accurately and fairly on the subject are suspect. The debate on the value of our patent system has regrettably degenerated into a PR campaign launched by those who simply have agendas against patents, and have no real understanding or expertise about the subject. Unfortunately, with the information explosion, the general public will have trouble separating the wheat from the "chaff" that these anti-patent folk spew. As Joe Allen has astutely noted, and as you've done in this piece, these so-called "experts" need to be pressed (and pressed hard) as to their evidence and factual support for what they say. And continue to carry on the good fight for balance on this subject.

I enjoy the fact that this piece appears in this forum. The patent system is indeed under attack (from multiple angles), and it is comforting to see that a 'divide and conquer' approach will not work when those in distinct art areas do not adopt a NIMBY viewpoint.

But aside from pressing for the facts (and highlighting bias) in a rear-guard, post assault manner, is there a better way of combatting those who personally pursue such anti-patent agendas?

It is good that this is raised here. It does appear that (i) patents and patent law are under attack, (ii) the courts (especially the supreme court) are in disarray and (iii) congress is useless and does not understand the situation. Obviously, there will be people, including members of the patent bar, who disagree with this assessment.

To my knowledge, there is no forum where people who have similar misgivings can get together and attempt to raise a counterattack against the nonsense. This blog is a place where comments like these are treated with respect and without resort to personal attack. Some of the other patent blogs out there rapidly descend into the personal and vicious, which is not helpful in the slightest.

It is time for people who share the feeling that something is seriously wrong to get together and institute a forum where their opinions are articulated and defended. That concern is grounded in the belief that, on balance, patents contribute to our capacity to generate wealth, thereby defending our standard of living, which has been stagnant for years.

As professionals, patent bar members arguably bear some responsibility for trying to make things better because of the distress that our institutions appear to be suffering from. Most of our political institutions, including the courts, appear to be floundering, if not in outright failure mode when it comes to patents (and a fair number of other things as well). If there is any way to provide fair, unbiased, reasonable guidance, the time is ripe for that. Fixing patent messes won't solve everything, but it should help. At least, that's a reasonable take on the fact that the founding fathers even mentioned intellectual property in the constitution at all. Unless there is unbiased economic data showing that patents, on balance, hurt the economy more than they help, patents are in dire need of a much better defense than they now get. One might have thought that the PTO would rise to the occasion, but unfortunately and inexplicably those folks are mildly to moderately on the other, i.e., wrong, side of this issue.

Any takers?

Andrew: "However, when a media outlet such as Wired.com posts such an article, without disclaimer or qualification, it invites the reader to assume that the piece represents reality."

What about when this blog posts articles about the terrible things that will happen if people aren't allowed to patent new methods of thinking about the results of old diagnostic tests? You know, like it did endlessly during the run-up to the Prometheus v. Mayo decision? Did those articles "invite the reader to assume that the pieces represented reality"? They didn't paint a very accurate picture of reality, nor were the claims at issue in Prometheus discussed very candidly. The same could be said of the claims that Myriad is pursuing, although occasionally there appears to be at least some bona fide attempt at circumspection there.

Skeptical: "is there a better way of combatting those who personally pursue such anti-patent agendas?"

I would suggest finding common ground and working to improve the system, which certainly has its flaws, instead of reflexively attacking anyone concerned about those flaws as "naive" or "missing the bigger picture." This blog isn't the worst (by far) but it certainly appears biased towards protecting the interests of stakeholders in the industry.

EG: "these so-called "experts" need to be pressed (and pressed hard) as to their evidence and factual support"

Of course they do. That's true on all sides of every debate. It's also very important and useful for the public to be informed of any financial interests that the self-described "experts" might have in their opinions. For example, a PBS or NPR "expert" who defends increased patent protection for biotech companies should not hide the fact that he or she is a partner in a law firm whose clients would benefit directly from the proposed positions.

Ah yes, Joe, the "you take the position out of self interest" canard. A little cheeky coming from someone hiding behind a pseudonym, don't you think? As it is, when PBS or NPR or any other media outlet quotes me my affiliation with the firm, as well as the fact that I am a biotech patent lawyer, is front and center.

If my own economic self interest was my motivation I would be standing on the sidelines cheering Mayo and AMP; every time the Congress, the President or the Supreme Court makes patent law uncertain the value of my services increases.

And as for Mayo, if you think Justice Breyer agrees that this was a method for thought control re-read the decision. He said as much in his Labcorp dissent so he knows how to make the argument. None of that was in the Mayo decision, which was grounded in the Benson/Flook/Bilski jurisprudence having much more to do with lack of novelty.

Have a nice day.

""[d]o I deserve a patent for a hovering skateboard that I cannot create?" The article gets the answer right ("Absolutely not"), but posing the question in the first place suggests to the reader that there is currently no enablement requirement. "

I thought that as well, but then I figured out that hovering skateboards are in fact enabled, and were in fact features on Gizmodo itself.


So it's really just a matter of him proposing whether HE in specific should be able to patent something that may be enabled to other people but which he himself is not enabled to make due to his ignorance. The question then is whether or not people wanking in the softiewaftie areas could actually implement their software themselves, (which many of them cannot if recent infringment cases are to be believed) should be able to patent something they cannot create just because some other (perhaps imaginary legally ficticious POSITA) person is able to implement the software?

I think that is actually what his question is about, though you are right it might mislead some people. Though the Gizmodo readership probably overlaps with the WIRED readership quite a bit.

There's also this:


Also note "real life":


"Benson/Flook/Bilski jurisprudence having much more to do with lack of novelty."

BFDB line of cases has exactly nothing to do with lacking novelty. Indeed, I don't even think the word probably appears in Benson except perhaps to describe the departure point from the prior art.

Dear 6: Correct about Benson; not sure Justice Breyer was thinking about that with his reliance on "routine, well-understood and conventional" statements in Mayo, to which I was referring.

Sorry for not making this more clear.

Kevin: "when PBS or NPR or any other media outlet quotes me my affiliation with the firm, as well as the fact that I am a biotech patent lawyer, is front and center."

Sure, but what do you do at the firm? Do you spend all your time re-examining junk patents on behalf of public interest groups? It's one thing, say, for someone to get on TV or write a Wall Street Journal editorial and say he's an expert and professional consultant on "school security". But if the editorial is about putting guns in schools, it's probably a good idea to disclose the fact that the expert's main clients are the NRA and Colt (just an example, not an attempt to make any kind of direct analogy).

"If my own economic self interest was my motivation I would be standing on the sidelines cheering Mayo and AMP; every time the Congress, the President or the Supreme Court makes patent law uncertain the value of my services increases."

Many of us have been in the business for a long time, Kevin. There's always been uncertainty, there's always change. Which entities you "cheer for" in "big" patent cases is very unlikely to change that aspect of the profession. The issue really isn't your (or anyone else's) "self-interest" in being a television or Wall Street journal pundit with a massive audience of naive viewers or readers. It's about the potential conflict between your unvarnished "expert" opinion and the interests of the clients you represent.

"as for Mayo, if you think Justice Breyer agrees that this was a method for thought control re-read the decision."

That's not necessary. I'm quite familiar with the case. Here's a passge from the summary: "In telling a doctor to measure metabolite levels and to **consider** the resulting measurements in light of the correlations they describe, they tie up his subsequent treatment decision".

Consider = "think about". I think that's clear enough. And there's plenty more where that came from. My comment, by the way, was not about the decision itself but about the run-up to the decision where various facts about the case (e.g., Prometheus' expert testifying that the claims were infringed by someone who looked at old data and thought about the correlation but did nothing else) and some obvious troubling implications of a Prometheus victory were routinely shunted aside in favor of hyperbole about "damage to the industry", children dying, etc.

I worry less about what the public thinks about our patent system, than I am what some members of the legal and otherwise professional community think.

That's because the patent issue is largely irrelevant to the public. Whatever the public's stance is, even assuming this could be extrapolated from polls, it cannot affect the system in a substantial way. I think in political science they call it a "soft" issue; or soft opposition to the issue.

However, it's when economists and legal scholars begin to disseminate falsehoods, or under-analyzed opinions, that I start to worry. Recently, the honorable Judge Posner debated with Professor Epstein about patents. And while I very much admire Judge Posner, and disagree with Epstein on what day of the week it is, I found the debate enlightening in this sense: Posner's views were outdated, traditionalist and displayed a lack of working knowledge of the patent system. Yet because Judge Posner is such a towering figure in the legal community, his opinions may be very influential. See his blog about this:

*Having said that, I found his proposal to use neutral expert witnesses interesting and perhaps appropriate.

Dear 6,

Thanks for the information on the hoverboard. I have learned several new technology areas preparing this post (unfortunately, I did ask what the gas grabber claimed). Of course, as you surmised, I was focused on the “that I cannot create” part of the sentence, but it’s nice to know that I might be able to get a hoverboard soon. Thanks again.


Joe the Plumber: "Do you spend all your time re-examining junk patents on behalf of public interest groups?"

And are public interest attorneys less biased on this issue?
Moreover, define a "junk" patent. If it's junk in a sense that it's not novel, or is obvious, and therefore shouldn't have been granted, then PTO is simply wrong and the issue may get resolved through legal channels. But such an outcome does not call for reform. PTO makes mistakes, as do courts and judges. No perfect or flawless system could be designed as to remedy this particular issue.

If it's junk in a sense that it's trivial, then as the blog post pointed out, it won't be a major stumbling block in the system.

From gathering the reading at Patently-O, and observing the thinly veiled 'theories' so similar in thought pattern and based on insistence rather than reason, it appears that PatentDocs has become infested (infected) with the schizophrenic rantings of Malcolm Mooney.

Get well soon.

Well, Joe, lest anyone misunderstand, I don't represent Myriad.

And if you don't think the Mayo decision will hurt access to genetic diagnostics, then you must not represent any biotech companies.

Nuff said.

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