Tuesday, February 21, 2006

Tim Wu's --Weapons of Business Destruction-- dull stupidity?

Paragraph one includes a discussion of NTP v. RIM as the tech world's very own Dr. Strangelove. NTP, a one-man Virginia firm, armed with nothing but patents, currently threatens to bring down BlackBerry and with it the sanity of millions of e-mail addicts.

The total inappropriatness of Wu's image is captured in Strangelove's line: Of course, the whole point of a Doomsday Machine is lost, if you *keep* it a *secret*! Why didn't you tell the world, EH? NTP and Campana TOLD THE WORLD of the invention by placing it in a patent.

Thus, when Wu continues: It is telling that the dilemmas created by software patents today are routinely compared to those created by nuclear arms, with patent trolls playing the role of the nuclear madman. one wonders where the relationship to Dr. Strangelove is. In Dr. Strangelove, the Americans doubted the technology of the Doomsday Machine: Mr. President, if I may speak freely, the Russkie talks big, but frankly, we think he's short of know how. I mean, you just can't expect a bunch of ignorant peons to understand a machine like some of our boys. And that's not meant as an insult, Mr. Ambassador, I mean, you take your average Russkie, we all know how much guts he's got. Hell, lookit look at all them them Nazis killed off and they still wouldn't quit.

Strangelove, Muffley, Turgidson and the rest were reacting to something that had been kept secret, and about which there was uncertainty. Not exactly the situation of RIM as to NTP's patents, which were all written down.

Wu does include the mandatory soundbyte suggesting PTO incompetence: On Nov. 1, 2005, the PTO issued Boris Volfson of Huntington, Ind., Patent 6,960,975 for his invention of an antigravity space vehicle (according to the application, "the spacetime curvature imbalance … provides for the space vehicle's propulsion"). This is a replacement for the more typical allusion to Smucker's patent covering a crustless, sealed peanut butter and jelly sandwich.

In this, Campana et al's patents (here attributed to the lawyer "David" Stout) fit right in: Arguably his patents should never have been granted; the idea of "wireless e-mail" is just too obvious to merit patent.

Even the Federal Circuit is demonized: Over time, that court changed course on software and other questionable areas of patent, transforming the system from one that was highly conservative to one that's much more liberal. The result was a rush for software and other patents that began in the 1990s and continues today.

Wu confuses innovation with invention, the area of concern of the PTO: And NTP got their chance when RIM did what NTP never did: They actually developed and made popular a wireless e-mail product, the now ubiquitous BlackBerry. As University of Chicago professor Douglas Lichtman puts it, "The original inventor maybe invented, but he didn't actually bring the idea into the world." The Patent Office simply is not concerned with whether or not the inventor commercialized the invention. Wu doesn't mention the business deals and partnerships of NTP.

To Wu, the only good thing about trolls like NTP is that they have inspired patent reform: About the best that might be said of trolls like NTP is that they've inspired a serious patent-reform debate. A growing crowd—including major firms like Amazon, IBM, Intel, Yahoo!, and Microsoft, and academics like Mark Lemley, Douglas Lichtman, Bhaven Sampat, Arti Rai, and others—now advocate some form of major patent reform. They want to fix the PTO to ensure that only the best, truly novel inventions get a patent, and they want to change aspects of patent procedure that currently make harassing litigation too easy. Ex-FCC-chairman Reed Hundt, for example, proposes reducing the number of patents by 90 percent and handing over a lot more money to those overworked patent examiners. The link under the word "advocate" is to Lemley et al's proposal on gold plating patent applications, something that did not come up in the FTC and NAS discussions. Further, patent reform started with an academic discussion, manifested in the FTC and NAS papers, and only gathered traction when various companies tried to use patent reform to advance their own interests. When these interests collided, in the area of permanent injunctions, patent reform 2005 was over. Wu does not mention that the Eolas patent survived re-examination without amendment, or the questionable nature of eBay's re-exam on the MercExchange patent giving rise to the permanent injunction issue. Perhaps all trolls are not created equal?

Wu concludes: In this debate it must be remembered that the regime of easy patenting of software is not natural law but an experiment—a judicial flight of fancy in an area of difficult economic policy. To remain healthy, the U.S. legal system should experiment, but it also needs to recognize when its experiments have failed. Both Congress and the Supreme Court have a chance to do something about the problem this year. The rise of the patent trolls is, in this sense, telling us something—that it may be time to end a system that is doing no one any favors.

Of course, neither the Supreme Court or Congress are scheduled to address software patents per se this year. Other issues are on tap.


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