A challenge to Mark Chandler, general counsel of Cisco Systems

Mark Chandler of Cisco has an "open forum" piece on page B7 of the San Francisco Chronicle titled Patent reform is crucial for innovators, consumers which begins "Innovation is the cornerstone of America's economy" and quickly launches into a subjective attack on opponents of patent reform (HR 1908/S 1145):

The act, now before the Senate, has three principles that are not controversial except for those who benefit from an imbalanced system that encourages lawsuits and is favorable to plaintiffs: (...)[forum, post-grant opposition, apportionment of damages]

Those who are more familiar with published work in patent reform than Chandler is may recall a similar attack on opponents of post-grant opposition made by Charles Gholz in the March 2007 issue of IPT ["Who You Gonna Call?" (Intellectual Property Today, March 2007, page 8)]:

[opposition to post-grant cancellation proceedings based on] "a reflexive desire to maintain the status quo and a thoroughly human desire to preserve vested interests."

In response to Mr. Gholz's March 2007 article, I cited work by several people, published before the Gholz article (and obviously published LONG BEFORE Chandler's propaganda piece) who had NO VESTED INTERESTS but who opposed post-grant opposition. I included text from an article I published in 2005:

In an article in Intellectual Property Today in October 2005 ("Things Are Not Always What They Seem To Be," page 20), I had written:

The patent "quality" issue is one of several motivating the reforms proposed within H.R. 2795, which will be much discussed in the coming months. In my opinion, the most direct approach is to end fee diversion, give the USPTO sufficient funds to do the job of examination, and then evaluate its performance.n10 Adding on new responsibilities for the USPTO, without resolving the issue of resources for its core function, is questionable policy. In the specific case of patent oppositions, the addition of a product inspection step when there are foreseeable, identifiable remedies to the production itself violates the basic teachings of Deming.

Although submitted to IPT at the beginning of April 2007, the article did not appear in IPT until September 2007. The IPT article ended with an invitation to Mr. Gholz: Finally, this letter should be considered an invitation to Mr. Gholz to identify any elements of a "desire to preserve vested interests" of the authors that he might find in the above-referenced prior art to his March 2007 article. To date, Mr. Gholz has not responded. A similar invitation is extended to Mr. Chandler to show evidence that those who oppose oppositions are those who benefit from an imbalanced system that encourages lawsuits and is favorable to plaintiffs. Mr. Chandler can start with me, but he should also note that Cecil Quillen also opposes oppositions. At the end of the day, Mr. Chandler has no credibility in this matter.

[Work discussing why post-grant oppositions are a bad idea, all published BEFORE the articles by Gholz and Chandler, was presented on IPFrontline on 4 April 2007 in an article titled Post-Grant Opposition: a Bad Idea. In passing, note that Carlson has a recent article on the bad experiences of foreign patent offices with post-grant oppositions.]

LBE wrote to the SF Chronicle in response:

Of the words in Mark Chandler's piece:

The act, now before the Senate, has three principles that are not controversial except for those who benefit from an imbalanced system that encourages lawsuits and is favorable to plaintiffs: (...) second, give those accused of infringement, who have relevant evidence bearing on whether the patent should have been granted in the first place, the opportunity to bring that to the Patent Office for review

as one who who does NOT benefit from an imbalanced system that encourages lawsuits AND who has discussed objectively the problems with the proposed post-grant opposition procedure in S.1145, I take issue with accuracy of Chandler's statement.

Curiously, the approach of subjective attacks on opponents of patent reform, specifically opponents of the opposition procedure, has been tried before but when facts are presented the accusers run and hide. (see http://www.iptoday.com/news-archived-article.asp?id=889&type=ip)

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In passing, note that Chandler's text:

second, give those accused of infringement, who have relevant evidence bearing on whether the patent should have been granted in the first place, the opportunity to bring that to the Patent Office for review

might leave the uninformed reader with the impression that "those accused of infringement" don't already have the opportunity to bring relevant evidence to the Patent Office for review. It should be self-evident that "those accused of infringement" can initiate patent re-examination proceedings, and, in fact, many accused of infringement HAVE INITIATED re-examination proceedings.

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In a not-unrelated piece on "patent reform" on patenthawk titled Smoking Obama, patenthawk savages recent proposals by Senator Obama in the area of patent reform. In view of the telling last paragraph, the post might better have been captioned "Smoking Lemley?":

Law professor Mark Lemley, Douglas Lichtman, and Bhaven Sampat wrote a paper titled "What to do About Bad Patents," that reads like a blueprint for Obama's patent agenda. The fallacious premise for this is that the value of a patentable technology can be known from the get-go; news flash: it can't. Anyone sufficiently experienced in the patent business knows this. But if you're just a law professor...

One hopes that former law professor Obama doesn't adopt Professor Lemley's position that Gary Boone invented the integrated circuit [IC].

Is this the blind leading the fools or the fools leading the blind?