Litigation, not patent quality, is the real driver of patent reform

The Patent Prospector presents some litigation figures:

Here's the top tech dogs in 2006 courtroom patent brawling, including number of lawsuits involved, regardless of plaintiff or defendent:

1. Microsoft = 19
2. Verizon = 16
3. Apple = 12
4. HP = 11
5. Intel; Dell = 9
7. AT&T = 8
8. Adobe; Broadcom; CA; Motorola; Orace = 7

This "high frequency" of patent litigation is why the likes of Microsoft, HP, and Intel are pushing for patent reform, rather than patent quality per se. The Coalition for Patent Fairness was headed by Doug Comer, who is also Intel's director of legal affairs and technology policy.

The Patent Prospector also notes:

Chris Carraway, patent litigation head at Klarquist Sparkman: "These days I bet a majority of patent cases do not involved [sic] competitors, but non-practicing patent owners over damages."

This is the patent troll story of non-makers of things holding up those who do make things. It can involve both damages and the threat of a permanent injunction.

Competitors who make things tend to make deals, possibly involving cross-licensing of patents. Within limits, competitors try to "get along." This is one reason why Professor Jaffe's idea that competitors will fork over relevant prior art in a pre-grant context is misguided. A competitor who will cross-license, post-grant, is not likely to stir up the pot and start a range war, pre-grant. However, a large entity may go after a smaller entity, pre-grant, to nip a POTENTIAL competitor, IF the smaller guy has a really threatening idea. Nobody is apt to go after [weak] ideas, pre-grant, as Professor Dreyfuss noted in her UMich LR review of the Jaffe/Lerner book.

There is a long thread at Patently-O, which includes some text:

-->Mr. Ravicher's statistics that 85% of all original applications end up getting patented (whether through one round of prosecution, or through two or more via RCE's and continuations) are just plain wrong. The PTO's own statistics clearly refute his claim. The studies he cites are also flawed in their analysis. [IPBiz: the 85% number comes from the second paper of Quillen and Webster, which was endorsed by Lemley and Moore as the "best number" we have. Of course, it isn't correct.]

-->Jaffe's entire thesis is based on some fairly weak and reed thin presumptions. I have yet to find a good definition of a "bad" patent or a "trivial" patent except one that an infringer didn't want to pay royalties on.

-->It is unimportant that Jaffe, an economics professor, has all his numbers wrong.

He has already succeeded in planting his Thought Terminating Termites in the Temporal Lobes of his listners' brains. [IPBiz: perception becomes reality.]

Don't believe me? What's that grinding sound we hear in the background? Yup. It's the sand in the gearbox.

-->What I learned about post-grant opposition, however is that once its available everyone will use it. Especially, the big bullies. Since it is designed to be a lower cost alternative to litigation, the big companies love it since they can get more bang for thier buck and shake out the suckers prior to litigation, while learning much about the case prior to brining it to court.

-->

One more thing. When a book on patents "Innovation and Its Discontents:How Our Broken Patent System..." is labeled "provocative" you know something is wrong.

Even the title has the kind of unsupported presumptions found throughout the book. Jaffe does not title his book "Innovation and Its Discontents: Is Our Patent System Broken?" He has already made that conclusion and wants you to buy into his premise.

I don't think the patent system needs a Dr. Phil or an Oprah. Again, any book on patents that purports to be "provocative" should immediately be suspect as originating from a deconstructionist.

I can see the headlines five years from now "China posts record manufacturing gains, while U.S. trade deficits mount. Many believe patent harmonization led by patent system deconstructors is largely to blame. U.S. Trade Rep Jaffe cannot be reached for comment"


The only way to flush the sand out of everyone's mental gearboxes and to safely transport them out of the image implant zone, is to do a full dissection on Jaffe and to demonstrate that he has sand and sawdust in his skull. He is a scare crow puppet working on behalf of the dark forces, the hidden ones who have 'coallitioned' themselves against independent innovation. Fair is foul as Shakespeare has oft warned us. So beware of the "Coallition for Patent *Fairness*". (It would be foul Dennis not to allow me to demonstrate where the real battle is ongoing --for the hearts and minds of the voting public. It is no accident that Congressman Berman had such a one-sided "hearing".)

OK with that done, show us the numbers again John. Show us every point where sawdust Jaffe fabricates falsities on behalf of the dark coallition instead of sticking to the truth. The truth is that the USPTO is working hard to destroy the American innovator. The truth is that the Protection [Racket] Act of 1999 did not go far enough in so far as the Dark Forces of the Coallition are concerned. That is why they bring us the Quality Choir of 2007 this year. If you are "truly" about quality, you would have your numbers right. Does Jaffe have all his numbers right? If you are "truly" about quality, you would have examiners who know technology and law. Does the USPTO? Ask yourself these hard hard questions. A glimmer of truth may appear from out of the void.