The Best Post on Patent Reform (Not Written By Me, I Mean)

For years now, people have been screaming for patent reform, most notably to help get rid of, or at least neuter, patent trolls.  But then as soon as that happens, we know it will be temporary because the trolls will invent “neuticals for trolls” (and patent it) and they’ll be hard at work all over again which is why I’ve never been a huge fan of letting the government fix a problem that they created to begin with.  I think the market is the best place to kick a troll’s ass and companies like Newegg are taking that to whole new levels and OMG how hard was it to write about patent reform, and an excellent blog post about it, before jumping on that bandwagon?  VERY HARD, that’s how.

whoopass IP Trolltracker

Can of Whoop Ass appearing courtesy of Newegg.

The post in question was written by one Florian Mueller and it had me hootin’ and hollerin’ and  fist pumping so hard throughout that I kid you not, my neighbor saw me through the window of my home-office and thought something was wrong, came over and rang my doorbell, set my silver labrador retriever off in a fit of barking, and cost me an hour of productivity while we all wound down.  Thanks for that, Florian.

There’s so much gold in this post I’m finding that even after sifting, my pan is full of the good stuff.  But I’ll start with this quote, because I think it’s genius:

In all those congressional hearings on patent reform that I watched, each and every politician repeated the mantra of the U.S. patent system being key to innovation and allegedly being the envy of the world, when the reality is that it’s the laughing stock of patent and industry professionals in the rest of the world.

First off, I’m not convinced that, anymore, the patent system is the key to innovation.  Why?  Because you can innovate without patents.  You can be successful, you can launch a product (with or without funding), you can win at life without a patent.  True story.

To continue the quote:

…and no one believes that U.S. juries are qualified to determine infringement and validity issues, no one has ever disagreed with me that the Federal Circuit is generally too patent-holder-friendly, and no one has ever disagreed with me that the quality of USPTO-granted patents is generally even lower than that of European patents.

Exactly.  I said the exact same thing in October of 2012 and again in December of 2013.   I’m not knocking Joey Bag-o-donuts.  I’m saying that patent law is tricky and sneaky and full of all kinds of techno-speak that finding a “jury of your peers” in that space would require visiting Stanford or Harvard or South Texas College of Law and plucking students out of the sessions in law school that deal with IP, not sending a letter in the mail to people who live within a ten mile radius of the court house in Marshall, Texas.

Courthouse_Marshall IP Trolltracker

So pretty. Too bad the shot didn’t include the ice skating rink that Samsung built. Zzzing!

Continuing, I want to put this quote on a sandwich board and wear it on Capital Hill (when it warms up, of course):

It must be said that the correlation between patents and innovation in a country is hardly a causation of patents promoting innovation, that patents increasingly serve as a substitute rather than an incentive for innovation, and that studies linking patents to innovation are often based on circular logic, considering each patent an innovation.

See statement above.  Patents NEQ Innovation.

The whole point of Mr. Mueller’s post is, after correctly identifying the problem, to point out ways to use the governmental process to fix what’s wrong.  I don’t agree with everything on his list because that would be way boring.  But I do think he’s got a couple of points that the dialogue should start addressing if we’re to solve the problem:

  1. Don’t blame it all on the trolls.  I blame a LOT on patent trolls (mostly global climate warming change because I can tell by looking that they’re the reason for all the snow this year), and I think the behavior of using patents in sneaky and underhanded ways is deplorable and I’ll keep writing about it until they’ve all gone the way of the horse and buggy.  But we can’t ignore the fact that the USPTO gave them the stick with which to beat that drum.
  2. One size does not fit all.  Different industries require different approaches to protecting intellectual property.  Realize that, and make the necessary changes to the law to account for it.
  3. Meritocracy.  So, I can’t really paraphrase what he said here because I can’t get the words to come out right.  But go read what he says in that section of his blog post, nod your head in agreement, and come back here and thank me for calling it out.  You’re welcome.

One thing I didn’t see on his list is venue reform.  As we all know, I’m not a fan of letting the government solve the problem of patent trolls per se.  To some, that’s what “patent reform” is, killing the likes of Intellectual Ventures and Uniloc, et al.  I don’t like that definition.  If we broaden it to include Florian’s list and add venue reform so that Marshall, Texas and the judges and claims construction experts and jurors who live there are taken down a notch or ten, then I’m all about that hashtag.

Creating the patents system didn’t happen overnight, and fixing it won’t happen that fast either.  Figuring out how to start the dialog that will yield the best results is half the battle, I think.

Thank you, Mr. Mueller, for articulating it so well.

JustSayin_small_New

IPTT

{Courthouse image found here.  Can of whoop-ass found on every pantry shelf in the state of Texas.}

 

 

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One thought on “The Best Post on Patent Reform (Not Written By Me, I Mean)

  1. Pingback: EFF: “Las Patentes de Software Arruinan Todo” | Techrights

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