Friday, August 11, 2006

The businessman view of IP: Plagiarize, don't shade your eyes?

Largely unnoticed by the intellectual property community in 2004 was a book "Hardball" by two business types at the Boston Consulting Group [BCG]. Viewed in proper context, "Hardball" is the complement to the book by Lerner and Jaffe on patent law: Lerner and Jaffe assert "what is wrong" with patent law and Stalk and Lachenhauer tell you what [some] businessmen really want as to intellectual property.

In an article titled "Torturing your Rivals" in the August 28, 2004 issue of The Economist [U.S. version], one gets some inside information on the book Hardball which didn't appear in reviews originating on the this side of the Atlantic:

With the editors at the Harvard Business School Press, the internal police at BCG also balked at some of the language, chuckles Mr Stalk. One chapter heading, urging managers to "Plagiarise, don't shade your eyes", became "Take it and make it your

Although the Harvard Business Review won't accept criticism of the Jaffe/Lerner book, an assertion that businessmen ought to plagiarize as a routine business practice was apparently too much for the HBSP. However, writing that patent law is an obstacle to "taking it and making it your own" is all right at the HBR and at the Princeton Press.

A different point in the review by the Economist is of relevance to the questionable article in Science by Kintisch on US continuation practice:

Nobody focuses on what really matters in business, they argue: the profits and
pleasure that come from making competitors suffer.

In his July 28 article in Science, Kintisch brought up the Chiron v. Genentech case as an example of the [supposed] loophole in US patent law that allows patent applicants to add, through continuation applications, new detail to ensnare their competitors retroactively. Kintisch neglected to tell the readers of his Science article that Chiron lost the case to Genentech BECAUSE OF lack of written description and enablement. That is, the holding of the Chiron v. Genentech case NEGATES the "loophole" asserted by Kintisch. Kintisch got the law wrong.

On a different level, Kintisch got the origin of the problem wrong. Patent holders (not patent lawyers) are the entities who bring lawsuits. If some businessmen bring patent lawsuits to obtain profits and pleasure from making competitors suffer, look to the businessmen, not to patent law, for a resolution.


To date, no patent lawyer has stepped up to defend the position of Kintisch on the [supposed] loophole in patent law or on the contention that nearly a third of all patent applications are "continuation" applications. I have already submitted a law review article questioning the accuracy of statements made in the article in Science on July 28, 2006.

[IPBiz post 1863]

In a different article, I'm going back to an invention that became famous on July 3, 1863, but would later vanish from sight, illustrating the tricky distinction between the concepts of invention and innovation.

Further on the subject of "plagiarism," Marc Porter Zasada had an interesting discussion in the July 23 LA Times, which ends with the following example:

In 2002, a novelty company called JCW Investments Inc. sued Novelty Inc. for imitating its "Pull My Finger Fred" doll, which shakes, makes a crude noise
and offers scatological cliches when its finger is pulled. For example,
Fred says "Silent, but deadly" and "Did somebody step on a duck?" It turned
out that neither plaintiff nor defendant developed the idea: Years earlier,
someone else had gone on the radio with a sketch titled "Pull My Finger Charlie"
showing a hypothetical toy doll that made a similar noise and joked, "Did someone
step on a duck?" when its finger was pulled. Still, after a trial tracing
flatulence jokes back to Emile Zola, the plaintiff won.

Evidently, copyright law is also an obstacle to "taking it and making it your own."


Post a Comment

<< Home