Monday, April 03, 2006

TIME magazine in the patent biz and the sociopolitics of eBay

On April 3, 2006, TIME tackled eBay v. MercExchange and various patent reform issues.

Patent lawsuits have soared over the past decade, up about 58% since 1995. The patent office is drowning in filings; one recent application is for a napkin band printed with advertising. The office is getting known as an easy grader, awarding patents too leniently, to such things as basic medical tests and "business methods" like one-click online shopping. That stifles innovation and blocks new products from the market, according to some experts. "There's a consensus in academia and the legal world that the patent system is seriously out of balance and needs reform," says economist Carl Shapiro of Berkeley's Haas School of Business.

Note that TIME did not mention the absolute numbers, just the % increase. With applications (below), absolute numbers were used. The idea that there is a "consensus" overlooks the fact that there is NOT a consensus on "what to do," as seen in the stalled activity on HR 2795.

TIME made a point about the re-examination of MercExchange patents:

No wonder a MercExchange lawyer fumed in early March when the Buy It Now patent was reassigned to a new examiner after staff in the technology center had spent 21/2 years dealing with it. The new examiner rejected MercExchange's application after only a few days, although the shift may reflect the new way the patent office handles re-examinations in cases more than two years old, with an emphasis on speed.

TIME did NOT mention that the prior art used in the re-examination (the '111 patent)was the same art that failed to establish invalidity in the district court litigation and CAFC review thereof.

TIME quotes Merges:

"The trolls are turning patents into lottery tickets instead of rewards for late nights in the lab," says Rob Merges, a Berkeley law professor backing eBay. Merges says semiconductors and software may be covered by hundreds of patents, each with distinct claims, yet it may take only one case of infringement for a judge to issue an injunction, compelling many companies to pay the trolls to go away.

This certainly is an argument that has been made. However, is one to infer that infringing a single element patent claim BAD, but that it is all right to infringe many different patent rights simply because one has a MULTIELEMENT product? Clearly, the pharma industry seems to think a pharma company with a composition of matter claim has a right to an injunction in cases wherein someone sells a drug with that composition. Does that right to an injunction DIMINISH because the accused infringer might include MANY drugs (including the patented one) in some kind of cocktail? That is, does a patent holder's right to an injunction diminish because of the complexity of the accused infringer's product? One suspects not.

TIME's number for patent applications for FY2005 seems high:

Whatever the eBay verdict, the patent office looks overwhelmed. It received a stunning 409,532 applications in its 2005 fiscal year, up from around 126,000 in 1985. Examiners average just 19.7 hours per application. None of this is news to Jon Dudas, director of the office, who admits that his staff can't keep up. "It's not that we're taking longer," he says, "but the line just gets longer out the door." In January Dudas announced steps to streamline the process and hire more examiners.

TIME also got into the lobbying dimension (previously reported in the New York Times on March 17):

The case is so important that eBay has hired big-name lobbyists in Washington, such as the Ashcroft Group, a lobbying shop run by former U.S. Attorney General John Ashcroft. Juleanna Glover Weiss, an ex--press secretary for Vice President Dick Cheney, is registered as an eBay lobbyist on "patent reform."

Washington Life Magazine had reported:

Juleanna Glover- Weiss is the attractive redhead who got a river of ink in breathless profiles in the New York Times, Washington Post, citing her wide swath as a dynamite lobbyist with Clark and Weinstock, and spectacular hostess. Juleanna has a high profile political background, and is a wife and mother. She was formerly the press secretary to Vice President Dick Cheney and advisor to both former New York Mayor Rudy Giulani and then–Sen. John Ashcroft.

AuctionBytes had reported:

The Hill reports the Ashcroft Group's Juleanna Glover Weiss, a former aide to Vice President Cheney, is lobbying for eBay ( O'Dwyer PR said eBay hired the company to help on patent reform issues in an article titled, "Ashcroft Does Ebay's Bidding."

Other than the political connections, it's not clear what's being brought to bear here.


Blogger Unknown said...

Download Time's patent for free in PDF format from Patent Retriever at

8:17 PM  

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