Tuesday, September 26, 2006

IBM to put patent filings on-line, but does this really matter?

In an article entitled Hoping to Be a Model, I.B.M. Will Put Its Patent Filings Online, Steve Lohr of the New York Times begins:

I.B.M., the nation’s largest patent holder, will publish its patent filings on the Web for public review as part of a new policy that the company hopes will be a model for others.

If widely adopted, the policy could help to curb the rising wave of patent disputes and patent litigation.

The policy, being announced today, includes standards like clearly identifying the corporate ownership of patents, to avoid filings that cloak authorship under the name of an individual or dummy company. It also asserts that so-called business methods alone — broad descriptions of ideas, without technical specifics — should not be patentable.
[IPBiz notes that Lohr neglects to mention IBM's airplane restroom queue patent, perhaps one of the most egregious business method patents of all time.]

Lohr emphasizes the risk to IBM of giving information to competitors at such an early time: “Competitors will know years ahead in some cases what fields we’re working on,” said John Kelly, senior vice president for technology and intellectual property at I.B.M. “We’ve decided we’ll take that risk and seek our competitive advantage elsewhere.” HOWEVER, Lohr neglects to point out that universities typically submit papers to rapid publication journals immediately upon patent application filing, thereby undertaking similar risks. FURTHER, if one goes back to Bell Lab's invention of the transistor, one notes that submissions to journals were made immediately after patent application filing, so that the journal articles describing the transistor (and showing Bell Labs' interest) appeared LONG BEFORE the patents issued.

Lohr suggests that IBM's action is related to the so-called patent quality issue. The more open approach, I.B.M. says, is intended as a step toward improving the quality of patents issued in general because the process of public review should weed out me-too claims that are not genuine innovations. Lohr does not explain what the public is going to do with the information in order to "weed out" bad claims.
Later in the article was done find a quote from Josh Lerner, co-author of Innovation and its Discontents: “This is a creative response to that fundamental issue in the patent system,” said Josh Lerner, a professor at the Harvard Business School. The patent quality issue also comes up in the text: The old system of a lone patent examiner weighing the innovative merit of a claim to originality, they say, cannot hope to cope with the surge in patent filings. A result, they note, is that many patents are granted for supposed inventions that are of dubious merit.
The avalanche of patents — many making broad and vague claims — has produced an environment of uncertainty, rich in opportunity for litigation and patent speculators.
Lohr does not use the words "patent troll."

The article includes a quote from IBM CEO Palmisano: “The larger picture here is that intellectual property is the crucial capital in a global knowledge economy,” said Samuel J. Palmisano, I.B.M.’s chief executive. “If you need a dozen lawyers involved every time you want to do something, it’s going to be a huge barrier. We need to make sure that intellectual property is not used as a barrier to growth in the future.” Looking at this a bit differently, IBM's "early publication" practice could be viewed as a gambit to ensure that IBM's competitors will "need a dozen lawyers involved every time they want to do something." Because IBM is not placing its patent applications on-line UNTIL after they are filed, IBM is not risking any of its claims to priority.

Of the Hatch / Leahy bill (S 3818), Lohr writes: Yet any legislation is not likely to be enacted for another year or two.


Anonymous Anonymous said...

I suspect that almost all of IBM's important poatents are filed inetrnationally, and thus already published by the relevant patent offices 18 months after they are filed.

6:14 AM  
Blogger Lawrence B. Ebert said...

Thanks for the comment. I think IBM's point is that they are posting on the internet immediately, so the posting will occur before the 18 month publication (whether through US or PCT rules).

Of recent IBM patents:

US 7,114,156 (issued 26 Sept 06): no PCT or other priority claim.

US 7,114,152: no PCT or other priority claim.

US 7,114,150: no PCT or other priority claim.

US 7,114,146: no PCT or other priority claim.

US 7,114,136: no PCT claim, but continuation of abandoned application.

US 7,114,129: no PCT or other priority claim.

US 7,114,127: no PCT or other priority claim.

In any event, I think we would agree that IBM's stated plan is largely a meaningless gesture as to changing any substantive patent rights. It's public relations but it's not about patent quality.

6:50 AM  

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