Sunday, July 29, 2007

Letters to WSJ Online dispute Intel position on patent reform

Further to the commentary by Sewell (Sewall) of Intel in the Wall Street Journal, the WSJ Online carried two letters on July 28.

One by David P. Vandagriff, Vice President Intellectual Property, Helius, Inc., Lindon, Utah included the text:

In fact, this reform bill is the brainchild of a small group of very large computer technology companies, including Microsoft, Intel and Oracle. It is not coincidental that each of these companies has been a defendant in an antitrust suit. They rely upon market power to maintain their dominant positions and are serial patent infringers.

The other letter (by James F. McKeown) included the text:

To justify his concerns, Mr. Sewell points to a tripling of patent suits between 1991 and 2004. This seems a bit disingenuous as recent statistics from the Administrative Office of the U.S. Courts show that patent suits increased by only 34% over the past 10 years. So can't we just as well conclude that this was a problem of the 1990s and the worst may be behind us in court filings? Perhaps rational economic forces have already addressed the lawsuit problem.

Of comparable inaccuracy to the Intel assertions is the law review article by Susan Walmsley Graf titled IMPROVING PATENT QUALITY THROUGH IDENTIFICATION OF RELEVANT PRIOR ART: APPROACHES TO INCREASE INFORMATION FLOW TO THE PATENT OFFICE. Although citing certain portions of the NAS/STEP report, Graf somehow neglected to mention what's on page 3 of the NAS/STEP report. As LBE noted at "Spring Seminar 2007," Careful reading of the National Academy of Sciences/STEP report reveals a lack of firmness in the "patent quality" conclusion. At page 3, one reads: "The claim that quality has deteriorated in a broad and systematic way could be, but has not been, empirically tested. Therefore, conclusions must remain tentative." At page 48, one has the statement: "Nevertheless, the claim that quality has deteriorated in a broad and systematic way has not been empirically tested." To paraphrase Emerson, the louder they talked of a crisis in patent quality, the more I wondered "whose crisis." In the patent examination business, Graf's approach is called "picking and choosing."

Of picking and choosing, Graf cited Jaffe and Lerner's Innovation and Its Discontents, but did NOT cite On Patent Quality and Patent Reform, 88 JPTOS 1068 (2006) OR papers of Quillen and Webster.


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