Wednesday, March 22, 2006

Jaffe/Lerner: "Our patent system is the enemy of enterprise"

On IPBiz on March 21, aspects of the Jaffe/Lerner [JL] op-ed in the WSJ were discussed.

Noting that the op-ed is sub-headlined "Our patent system is the enemy of enterprise," one observes JL assert

--> We believe that the incentives of the patent system induce all participants in the patent system-- inventors, competitors and potential litigators-- to invest in abusing the system rather than innovating. <--

JL bring up the idea on focusing on "the most potentially important applications," eerily reminiscent of the 2003 Note in the Harvard Law Review (which stated without qualification that the PTO granted 97% of all applications) and certainly in tune with Lemley's gold-plating proposal (ooops, Lemley's backing Metabolite, for patenting laws of nature).

The JL idea is out-of-touch with reality. Many accused trolls find out the perceived value of patents LONG AFTER they have issued, not while the application is being reviewed by the USPTO. Think about Forgent and JPEG, think about BT and the hyperlink, think about Kodak and Sun.

JL state: If bad patents with important consequences were weeded out by the USPTO, the incentive to file frivolous applications in the first place would be weeded out. And how is the PTO to learn which applications are the "most potentially important" with "important consequences." Businessmen can't figure this out. Innovators like Torvalds tell his people not to read patents. Patent examiners are to focus on whether the claims of the application are novel, useful, and nonobvious, not whether they have "important consequences."

Although the Wall Street Journal is helping Jaffe and Lerner by giving the op-ed the same title as the book, and in plugging the book at the end of the op-ed, they are not really advancing a solution in patent reform.


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