Friday, April 25, 2008

Patent reform 2008 as a house of mirrors?

The words could describe intellectual property professors in 2008:

Ah, we used to meet for strategy sessions at the University Club --and we were like ten guys in a house of mirrors entrancing each other. We satisfied each other with how smart we were...

No, not about a MENSA get together, but the words described another group of advisors to a lost cause. Unlike "patent reform 2008" (S. 1145), that cause at least got a vote, and later was redeemed. How will patent reform 2009 do?

Looking at the residue of "patent reform 2008," one sees that the Coalition for Patent Fairness was interested in apportionment of damages, and not much else. The "patent quality" problem was so much eye-wash, a predicate prop to the reform
two-step: there are tons of bad patents which lead to bad damages. SO --> Let's apportion damages. BUT, if we don't apportion damages, forget about that stuff about fixing bad patents. We didn't really care about that part.

Mike at TechDirt missed the point of Jon Dudas on bad applications. Dudas never said that bad applications turned into bad patents (bad patents were the issue of Jaffe/Lerner and of Quillen/Webster). Dudas in fact said the opposite, that quality of issued patents was quite good. Dudas was arguing that there were (recently) lots of bad applications, and the USPTO was rejecting them. Dudas (obliquely) indicated that the bad applications were the fault of big companies, who were trying to accumulate lots of patents. Dudas mentioned the toilet queue patent of IBM, tho he didn't mention IBM by name. In linking Dudas and Jaffe/Lerner, Mike Masnick demonstrated he did not understand what was going on.

The actions of the Coalition for Patent Fairness are consistent with this model. Many members thereof never really cared about "patent quality" because they are among the biggest abusers of poor quality applications and of repeated continuing applications. They were concerned about apportionment of damages as it impacted their status as DEFENDANTS in patent litigation. When that issue could not be resolved, it turned out that the other issues were not so important after all. This should be remembered in 2009.

***UPDATE

Further to comments below by Mike of Techdirt, let's return to Mike's words:

[Dudas] is now complaining that the Patent Office is being overwhelmed with really crappy patent applications. You think? Lerner and Jaffe pointed this out years ago and it's not difficult to see why. With the USPTO approving tons of bad patents, and the courts all too often siding with the patent holder and expanding what's patentable, combined with people who have done nothing getting hundreds of millions just for holding a piece of paper, is it really any surprise that the incentive structure would push people to file for as many bogus patents as possible, in hopes of getting them through the obviously questionable process?

[See also earlier IPBiz post.]

It's self-evident that Mike confused what Jon Dudas said [more bad applications lately but, don't worry, we are rejecting them] with what Jaffe and Lerner said [USPTO and courts are allowing bad (issued) patents]. Jon Dudas is definitely NOT saying the USPTO is approving tons of bad patents, which IS what Jaffe and Lerner were saying.

IPBiz does not agree that rejection numbers for one quarter [which comprise applications submitted over MANY (earlier) quarters] are proof of a sudden decline in the quality of applications. So Jon Dudas may be playing a game here, but it's a game inspired by Quillen and Webster, and later Jaffe and Lerner. In the land of the blind (Mike's world), the man with one eye is king.

IPBiz has repeatedly asked Mike for proof of his assertion that the USPTO is approving tons of bad patents. Although Mike has made many comments, he hasn't provided evidence of any kind. Mike can't cite Jon Dudas, who would deny such a claim.
As is evident from page 144 of Innovation and Its Discontents, Jaffe and Lerner don't know what a bad issued patent is. They had to copy their one "example" from someone else, and they got it wrong anyway. Other than mumble Jaffe/Lerner Mike does not seem to have anything on his own. Copyists typically don't have much in the way of original thoughts.

**UPDATE

Another comment by Mike below and still no evidence to support his assertion that the USPTO is approving tons of bad patents. Dudas didn't say that. Jaffe and Lerner did say that, but had no evidence. Apparently Mike doesn't either. If Mike didn't have Jaffe/Lerner, he would have nothing, except perhaps Bessen/Meurer. Dudas was talking about the bad patent applications of the IT people, like the airplane toilet queue patent. He could just as well have been talking about IBM's outsourcing application, Microsoft's employee monitoring application, or Apple's virtual store application. The people pushing the "patent quality" argument WERE the "patent quality" problem.

Of course, the people pushing the "patent quality" argument didn't really believe in it. They were worried about "apportionment of damages." When Senator Specter pulled the plug on "apportionment of damages" (as understood by the Coalition for Patent Fairness), the "reformers" went home. Befuddled Mike is still looking at the smoke and mirrors. Mike, the train left the station! It's over for 2008. The only people listening to you are the gerbils, or maybe Disney's suicidal lemmings (another construct without evidence).

**UPDATE

There's a third comment by Mike below. For the first time, Mike tries to present evidence for his assertion of "tons of bad patents", in the form of re-exam statistics. He doesn't quite get the numbers right, but it's what he didn't tell you that matters most.

Mike didn't tell you the number of re-exam requests. Between July 1, 1981 (when re-exams started) and December 31, 2007, there were 9,060 re-exam requests. Let's consider ISSUED patents. US 4,275,500 issued on June 30, 1981. US 7,275,500 issued on October 2, 2007. Mike is talking about an effect of magnitude 10,000/3,000,000 = 0.3%. Does Mike's invocation of re-exam numbers prove the existence of "tons of bad patents"? Not unless you believe something at the level of 0.3% represents the whole of the thing.

The true numbers for re-exams are a bit different than Mike's. 26% of re-exam certificates issued with ALL claims confirmed. [For all the smoke, the Eolas patent was one of these.] 10% issued with all claims canceled. The rest have some claim change. As in the re-exam of the WARF patents, the claim change may be trivial.

Mike is still looking at the smoke and mirrors, whether in his invocation of Jaffe and Lerner or in his using re-exam results without mentioning the scope of their significance. He says he didn't support patent reform; he didn't mention that he was proposing worse things.

***UPDATE on May 1***

Mike has a fourth comment below. Mike writes: You point out the full numbers, but the 0.3% is not an accurate number at all. Just because most patents don't get re-examined doesn't mean that they're all good. Of course, the 0.3% number derives directly from (# of re-exams)/(# of issued patents) over about the same time period. The number is accurate, and Mike provided no counter-evidence except the usual ipse dixit.

Mike has not learned the logical point about "you can't prove a negative." If Mike says the USPTO is issuing tons of bad patents, it's Mike burden to present some evidence backing up his affirmative assertion. Mike can't do that.

Further, one could look at Mike's invocation of re-exam numbers the other way. Only 0.3% of issued patents get re-examined, and only 10% of the re-exams result in the invalidation of ALL claims, the "trademark" of a really bad patent.
That's an error rate of 0.03%. And, if the re-exam rate is only 0.3%, then there is no evidence that innovation is really being held up. If there were tons of bad patents that were bothering people, then the re-exam rate would be a lot higher than 0.3%.
BUT IS ISN'T ! Mike shot himself in the foot on this one.

4 Comments:

Blogger Mike said...

Ah, once again, Lawrence, you have an amazing ability to accuse me of having said something I never said. You've been caught doing it in almost every post this week and not once have you apologized.

You have put others words in my mouth so often, it seems to have become a habit. Again, I ask you if you do this with your clients?

I never said that Dudas said bad patents were getting through. I was quite clear that he said they were getting flooded with bad applications.

I merely pointed out the obvious reasons why.

Yet, because you're so afraid of what I've got to say you again twist my words. It's really rather sad. Does it make you feel like a big person to lie about me so often?

Rather than bothering to understand what I am saying, you have had to slam me by association. Repeatedly you have accused me of saying stuff I haven't said, even taking quotes directly from others and accusing me of saying them.

And each time this has been pointed out, your response is to do it again.

I'd ask, Lawrence, that you apologize for your false statements. Somehow I doubt you'll do so.

Have you considered becoming a politician? You have a knack for it.

12:57 PM  
Blogger Mike said...

And yet again, in your update, you insist on three false things: (1) that I merely am using Lerner/Jaffe for everything (2) that I said Dudas said more bad patents were being issued and (3) that prior art is the sole determinant of bad patents.

On pt 1. I used Lerner/Jaffe to explain why more bad patents were being applied for. They have a very reasonable explanation that you have not refuted in the slightest. Like a good politician, you picked on one minor slip, which doesn't refute the rest of their argument and then assume everything they said is totally wrong. And then, even worse, you simply assume that because I point to one thing they said that I must agree with everything they say, despite the fact that I clearly do not.

On pt 2. I clearly said Dudas only admitted that more were being applied for. I never said that he said more were getting through.

On pt 3. even you ought to admit that prior art is not the only determinant of bad patents.

All 3 of these points have been pointed out to you in the past, yet you ignore them. And you call me blind. Hilarious.

Give it up, Larry.

What are you so afraid of?

11:33 AM  
Blogger Mike said...

Ah, another update, and another failure to address the points. Funny how that works.

Once again, would you apologize for your false statements?

As for proof of bad patents, let's look no further than the USPTO's own stats on re-exams. From 1981 to 2007, the USPTO has granted 92% of the reexamination requests it receives, and in approximately 3 out of 4 of those cases, the requests are having resulted in narrow claims.

If that's not evidence of the USPTO making a lot of mistakes, then I don't know what is.

Anyway, once again, I'll ask if you'll take back the false statements you made about me?

Btw, your points about the patent reform bill being dead are (typical Lawrence) totally off-topic. I was AGAINST this patent reform bill as I believed it would make the system worse. But, as per usual, in your rush to paint me with any damning brush you can find, you simply assumed I was for it. Will you take back your false statement? Once again, I doubt it.

Once again, I'd like to ask if this is the quality of your typical work for clients?

11:50 PM  
Blogger Mike said...

You update again, yet, again, you fail to apologize for putting the words of others in my mouth.

Is it so hard to say sorry when you're wrong?

Anyway... onto your latest mistakes...

You point out the full numbers, but the 0.3% is not an accurate number at all. Just because most patents don't get re-examined doesn't mean that they're all good. Most don't get re-examined because there's simply no reason to (mostly because they're not used to sue someone for infringement). The point remains that in most cases when a patent is re-examined, the claims are changed or thrown out.

That suggests a serious problem with the initial patent granting process no matter how you spin the numbers.

That there are bad patents is simply a fact. You offer no evidence to dispute it.

That the rise of bad patents and huge patent awards has increased the number of bad patent applications is also a fact. You offer no evidence to disprove it.

Instead, you call me names and put the words of others in my mouth. You're a real class act.

1:50 AM  

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