Since Patent Reform is in the air, here is an older exchange with patent attorney Lawrence Ebert at the IPBiz blog that I just came across while binging. I mean, googling:
Friday, December 14, 2007
Stephan Kinsella has a particularly insipid piece on patent reform, titled Another Reason to Reform Patent Law: Touch Off A Recession!
Kinsella writes: There’s increasingly hyperbolic opposition to patent reform efforts. Dude, some of us have been pointing to the “same old, same old” bad aspects of patent reform for years but guys like yourself never respond.
LBE published “Patent Reform 2005: Can you hear me, Major Tom?” back in 2005 and talked about it on IPBiz.
Kinsella finds boogeymen in the patent bar, just as Jaffe and Lerner do: Naturally, the organized patent bar and intellectual property (IP) advocates have an interest in labeling recent developments “radical” so that any really radical proposals will be dismissed out of hand. (Patent lawyers also seem loath to have to learn some new rules—those CLE courses are so bothersome.)
Lots of people in the “organized patent bar” favor post-grant opposition, a current part of the house and senate patent reform packages. It creates MORE opportunities for patent lawyers. Duh, where’s your brain Steve? Oh, yes, lots of new rules to learn in post-grant opposition.
The changes to the rules on continuing applications were supposed to impact the backlog, but they will affect only 5% (or fewer) of filed cases. Tough to see how all this added paperwork is going to reduce backlog. Where’s your logic Steve?
Steve writes: Well, I disagree that the proposed and recent changes are radical. Patent terms have not been shortened. The scope of what is patentable has not shrunk. Steve doesn’t mention that the ability to claim an invention will have shrunk if the new rules go into effect, and the ability to argue with examiners about stupid rejections will diminish. If a large fraction of continuing applications were devious attempts to claim the products of competitors, one might at least understand the motivation (if not the ultimate rationale), but the most abundant continuing application form is the RCE, wherein one can’t change the invention. One is arguing with the examiner about the claim scope of already submitted claims.
See also, PatentHawk Compact Prosecution and the 271 blog (Study Shows USPTO Backlog Is Tied More to Non-Final Actions, and Not Continuations)
posted by Lawrence B. Ebert at 2:48 PM
Saturday, December 15, 2007
Of Kinsella’s authority, Kinsella is a registered patent attorney, unlike Mark Lemley.
Kinsella further noted: I would be surprised if you can find any other patent practitioners who have written as much on patent policy as I have–see, e.g., my “Against Intellectual Property”, “In Defense of Napster and Against the Second Homesteading Rule,” and “There’s No Such Thing as a Free Patent” (variously translated into Polish, Spanish, and Georgian, btw) and other pieces collected here and on the Mises Blog, for a starter. Further discussion is found on wikipedia, and one can find a list of
Kinsella took issue to his article being termed insipid. The title of his post is Another Reason to Reform Patent Law: Touch Off A Recession!, but one has to dig hard in the post to find the demon giving rise to the title: Patent attorney John R. Harris ominously intones about recent and proposed change: “The U.S. has the best patent system in the world. What I’m afraid of is that they are about to throw the baby out with the bathwater. … The new rules are radical. The new legislation is radical. They will cause fewer patents to be issued.” The dots to the title of the post are finally connected (sort of) in paragraph 5 (of six paragraphs total): Anyway, Harris goes so far as to raise the possibility of a patent-reform-caused depression: “If we’re about to go into a recession and all of a sudden you kill innovation in the country, we might not have a recession. We might have a depression.” Whatever you do, don’t lower money-supply growth and easy credit, and don’t reform patent law–we might have a recession!
Somehow, Kinsella never manages to talk about currently-pending issues in patent reform, such as post-grant review (opposition), apportionment of damages, and first-to-file, instead choosing to whip up on poor John R. Harris to embody “hyperbolic opposition to patent reform efforts.” Thus, in addition to the diffuse structure of the post (i.e., the title theme shows up in paragraph five), the post never gets to the substantive issues currently in patent reform. For someone actually interested in patent reform, that makes the post insipid (bland). It was “interesting” only to the extent it further illustrates how little solid content there really is among the patent reform people.
Apart from trashing Harris, Kinsella goes after patent lawyers generally: Naturally, the organized patent bar and intellectual property (IP) advocates have an interest in labeling recent developments “radical” so that any really radical proposals will be dismissed out of hand. IPBiz seems to recall that AIPLA and IPO favor most of patent reform. In “Who You Gonna Call?” (Intellectual Property Today, March 2007, page 8), patent attorney Charles Gholz basically assumed post-grant opposition was a done-deal and was pointing out how interference attorneys would be the best (only?) attorneys to handle post-grant review. Gholz was NOT terming post-grant review or first-to-file as radical. Gholz invited people to respond to the March 07 article, and LBE wrote and submitted response in the beginning of April 07, which IPT did not publish until September and to which Gholz never responded. (IPFrontline did publish a version on April 4, establishing a response was timely made).
Paragraph 2 of the Kinsella post noted: the U.S. Patent and Trademark Office has proposed a new set of rules that opponents say would dramatically limit the ability of companies to create new products and protect them under the law. The main justification for the new rules given by the USPTO was to reduce backlog. Kinsella’s reply included: Anyway–where did I argue that the reform would reduce backlog? Kinsella earlier had demonized the opponents to the rules: opponents say would dramatically limit the ability of companies to create new products and protect them under the law. but Kinsella failed to note that (some) opponents to the rules oppose the rules because they won’t achieve their objective, and simply burden the system. See for example comments on continuation practice. Kinsella did NOT include the objective reasons why people oppose the new rules, instead trying to paint the opponents as crazies by reporting only SOME commentary on the topic. Like IPBiz says, it’s what one omits to say that is frequently most revealing.
Similarly, IPBiz does disagree with the assertion that opposition to patent reform is increasingly hyperbolic. There are SOME people that have intense feelings about this. HOWEVER to paint the whole picture in this way is like saying the advocates of patent reform are embodied by Mike at Techdirt. Mike exists, but he is not the whole picture.
Of –What does this comment have to do with people “like me” not “responding” to “some of you” pointing to bad aspects of patent reform?– why don’t you respond to the objective arguments against patent reform instead of demonizing poor old John Harris?
Of –First, the purported official rationale for the patent system is not merely to encourage disclosure. It’s also to encourage innovation itself. I’m not sure how you just assert that the latter purpose is not as important as the former one.
Second, talk about what “the” purpose of a patent system is, is a bit question-begging; this type of language seems to assume that the official explanation is the truth. Sure, the state and its supporters might give a reason for a policy. — IPBiz has no idea what Kinsella means by “purported official rationale.” The system does what it does: in return for a certain kind of disclosure an inventor gets the right to exclude for so many years. That’s it. Period. The USPTO never asks how the invention might be commercially implemented (“innovation.”) That’s for capitalism and free markets. Kinsella, and others, try to read “innovation” into a system that is not about innovation. It’s about disclosure of inventions and right to exclude. It’s not the only way one could do business. But the Venetians figured out it’s preferable to the “no patent” way about 500 years ago.
posted by Lawrence B. Ebert at 5:42 AM
Wednesday, December 19, 2007
Who’s flying the true conservative colors on patent reform and who is a pirate?
One of the other blogs missed the important point in detailing how different Viet Dinh was from the Democrats on “homeland security” and such. The key point here is that Dinh and Pelosi are almost on the same page on patent reform, and that tells you all you need to know about Dinh as a “conservative”, neo or otherwise.
It’s separately true that none of Pelosi, Berman, Kinsella, or Dinh want to talk about substantive issues, like why “post-grant review” (opposition), a product inspection step, is not going to solve the perceived problem of bad patents, a production step.
**Of points in Kinsella’s later comment
Mr. Ebert: do you deny that most patent lawyers are in favor of the patent system? That most patent lawyers are opposed to *radical* weakening of patent right? That is my point. The details of the current legal changes are really “insipid”, to me. They distract from fundamental issues.
Mr. Kinsella’s initial post was about “patent reform”, not about the patent system. As to “who is where” on patent reform, the AIPLA and the IPO seem to be mostly in FAVOR of the proposed reforms. Hmmm, does that mean they are NOT in favor of the PRESENT patent system?
“In “Who You Gonna Call?” (Intellectual Property Today, March 2007, page 8), patent attorney Charles Gholz basically assumed post-grant opposition was a done-deal and was pointing out how interference attorneys would be the best (only?) attorneys to handle post-grant review. Gholz was NOT terming post-grant review or first-to-file as radical.”
Why would he? This is merely tinkering with the system. It’s just a minor detail. It won’t affect patent attorneys very much.
IPBiz thinks the whole “reason” for Mr. Gholz’s writing the March 2007 is that Mr. Gholz thinks that post-grant review is going to affect attorneys in the position of Mr. Gholz a whole lot. That means “very much.”
posted by Lawrence B. Ebert at 4:52 PM