Kinsella way off on patent reform
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)
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
2 Comments:
Dear Mr. Ebert,
I'm sorry you found my piece insipid (meaning bland, uninteresting--but apparently interesting enough to reply to). Regardless of differing policy views on these matters, we can I am sure agree to be civil, respectful, professional, and courteous to one another when trading ideas. In that vein, let me try a reply to some of your comments here, and in your other post that you linked to.
I had written, "There's increasingly hyperbolic opposition to patent reform efforts." Your reply was: "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."
I have no idea what "guys like me" are. I am also not sure what I am supposed to have responded to. 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. I'd be curious what your justification for the patent system is (not your summary of others' justification). I haven't heard a coherent one yet from a single patent attorney I know; yet they are all so sure the patent system is "necessary."
In any event, it's not clear whether or why you disagree with my statement that opposition to patent reform is increasingly hyperbolic. Here we have someone warning of a "depression" if we reform patent law; others have told me they think current efforts will "obliterate" the patent system; that patent filings will fall to 5% or less of the current amounts. Is this not hyperbole? What does this comment have to do with people "like me" not "responding" to "some of you" pointing to bad aspects of patent reform? I really have no idea what you are trying to say here. It sounds like an attempt at insult, but the dots don't seem to connect.
"LBE published "Patent Reform 2005: Can you hear me, Major Tom?" back in 2005 and talked about it on IPBiz."
I don't know why this is supposed to be a retort to me. How does the fact that you published this mean that there is not hyperbolic, exaggerated opposition to patent reform? (See below for a response to this piece.)
I also don't get the "dude" comment--is this supposed to imply I'm a kid, or from California, or just approaching this non-seriously or non-intellectually? Well, I'm 42, many years of patent experience, in Texas, and as the writings linked above will show, have looked into this deeply and extensively.
"Kinsella finds boogeymen in the patent bar,"
It's not boogeymen. It's just recognizing the fact that almost every patent lawyer you will meet is--surprise--a proponent of the patent system. It approaches 99%, or more, I would venture. Obviously, there's a self-interested aspect to this. Likewise, public school teachers tend to be in favor of the public school system. This observation is not that controversial nor is it new to me.
"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."
Any of the proposed changes create more work for patent lawyers; that's why I'm mystified patent lawyers oppose any of it. Any change at all, except truly radical change, redounds to their benefit.
And this is my point--very clearly expressed--that patent attorneys by and large oppose *radical* patent reform--e.g., abolishing the system, going to a petty patent system, reducing the patent term (say, to 5-7 years), reducing the scope of patentable subject matter (say, restricting it to pharmaceuticals only). And this, I believe, is one reason they paint fairly modest reforms as "radical"--to put utterly out of question truly radical patent reform.
You may disagree with my analysis here; but a wave of the hand won't do it. If you think I'm wrong, why not explain why? I've got no skin in this game--to the contrary, it's in my interest to find ways to justify patent law, or work-generating changes to it.
"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 is short for Stephen or Steven; Stephan is a different name. It sounds like Stephanie without the "ie". Anyway--where did I argue that the reform would reduce backlog? Or even that I care one way or the other about the backlog? Or even that I support the patent reform?
In fact, I am mildly in favor of any reform that weakens (and therefore the harm done by) patents and reduces the costs they impose on society--even a relatively mild one like this. To me, this law is equivalent to a tax law reform lowering marginal rates from 47% to 46.2%. A move in the right direction, but very minor.
"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."
Why would I mention this? Of course the law does something. It somewhat weakens patents (but not unambiguously). I don't deny this. I just submit the change is relatively minor, not "radical".
Now, if someone wants to argue whether the extent of the change is radical or not, they need a coherent and justified definition of radical, and then an application of this concept to the changes at hand. But we don't see this--we see off-the-cuff appraisals, with no supporting reasoning. This is fine; but don't pretend as if this is truly rigorous or scientific, or that it's "obvious" or "settled".
"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."
I don't know what this remark has to do with my comments; I think you seem to be replying to someone else.
Now, in your post "What is the purpose of the patent system?", you write: "Many people try to suggest that the patent system is to reward people who create a commercialized product. It isn't. The purpose of the patent system is to promote disclosure of inventions. Period."
I don't agree with this, for a couple of reasons. 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. That does not mean it is "the" purpose of the policy. As an example, you could say "the" purpose of the military is to defend our country--that's what the state tells us. But others might believe "the" purpose -- well, that there are many "purposes"--and that one of them is to perpetuate itself, to live parasitically off the populace; another is to entrench the state's power; another is to dominate other states; and so on. "The" purpose of welfare is to help the poor, its advocates say; even though it doesn't. Maybe "the" purpose is other than the official explanation.
Likewise, I am not sure I trust the state--the state that steals half our income every year, that kills hundreds of thousands of innocent people with bombs and bullets, that jails people for victimless crimes like smoking marijuana--as to what "the" purpose of the patent system. I think I'll reserve judgment before trusting the pabulum they spoonfeed kids in government schools. One might argue that "the" purpose of the patent system is to redistribute wealth from one class to another; or even to destroy wealth (that is, if wealth-maximization arguments in favor of the patent system are flawed).
"the purpose of the patent system is to promote disclosure of inventions. It is not, and never has been, to encourage innovation that is "beneficial to our economy.""
I am curious why you assert this. What is your reasoning? Jefferson, e.g., the first patent examiner (and always on the fence about whether patents were a good idea), wrote that "Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody."
Now I do not agree that this is a good idea, or that it actually does encourage (net) innovation; but this seems to clearly have been a motivation of our founders. Jefferson also wrote that the patent system had “given spring to invention beyond my conception.” I.e., encouraged or stimulated innovation--not merely encouraged disclosure of them.
"Capitalists do that."
? Capitalists are entrepreneurs and directors of capital; I do not see that they are necessarily the same as innovators.
"There probably are some bad patents (an antigravity patent issued in Nov. 05)." Probably? This seems a bit stingy. There is no doubt: there are a LOT of bad patents.
"Getting better trained examiners and giving more time (and database access) will help."
Will it help enough to justify the extra cost?
I should also point out the Constitution itself empowers Congress to enact copyright and patent "to promote the progress of science and useful arts." It seems clear the founders thought the patent system would "encourage" innovation, not merely its full disclosure. See also these annotations to the Constitution: "Underlying the constitutional tests and congressional conditions for patentability is the balancing of two interests--the interest of the public in being protected against monopolies and in having ready access to and use of new items versus the interest of the country, as a whole, in encouraging invention by rewarding creative persons for their innovations."
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