Monday, April 03, 2006

More on TIME magazine on eBay v. MercExchange

When eBay is using lobbyists who make more than patent attorneys to advance its case, the discussion of the merits has gone well beyond the scope of mere bloggers. Perhaps Jaffe and Lerner should write about that. A comment from a reader follows:

First of all, I agree that the numbers cited in Time's Patently Absurd
article are high, it cites 409,532 application in FY '05, my research indicates this number is more realistically about 385,000.

Second, this article is a perfect example of how popular media harp on
the same stereotypes that make excellent sound bytes for headlines. The patent office is a train wreck. The article makes little effort to explain
at least one real reason for the increased amount of applications in
the patent office, i.e. increased innovation and the insufficient number of examiners with low retention rates. Most notably there is no mention that the PTO does not make value judgment as to how significant/good/stupid your patent is, it only determines if your subject matter is patentable, and if it is then
you should get a patent. The only thing that I thought was missing was the ever popular belief that the PTO grants 97% of applications. That is one of those sound bytes that is perpetually quoted, regardless of the truth underlying it.

Finally, I feel that the final paragraph of the article seems to
contradict the point the article is trying to make:

"Woolston, for his part, vows to fight eBay regardless of the Supreme
Court verdict. One of his rejected patents was reinstated on appeal, he says, and he plans to sue eBay again. An eBay spokesman says the company has a
workaround should Woolston get an injunction. "

The subheading under the title reads "Is the system, meant to promote
innovation, doing its job?" Sometimes innovation needs a bit of motivation. Good ole American ingenuity comes from problem solving. After all, the
saying goes that necessity is the mother of invention. What is often
overlooked and seldom reported in the media is the concept of a "design around". Companies often use the design around to side step and not infringe existing patents. The fact is that the "buy it now option" was not going away, it was going to exist in a slightly different format (how it would have changed I have no idea).
What could promote innovation more than forcing engineers to find another way to build a mousetrap. During the course of a design around engineers
may just build a better mouse trap. This concept of a design around
was also true in the Blackberry case.

**Separately, while it's true that the real entities eBay and MercExchange will be affected by the decision, it's important to note that the significant patent issues go beyond demonizing Woolston or portraying the commonly-accepted utility of eBay.


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