Wednesday, July 11, 2007

Questions about T.D. Wilson's review of Jaffe/Lerner

Concerning the post entitled New edition of "Innovation and Its Discontents" with new preface, the author of the review of the new edition, T.D. Wilson, is the editor of Information Research, an open access, international, scholarly journal, dedicated to making accessible the results of research across a wide range of information-related disciplines.

IPBiz got a chuckle out of Wilson's comment: First, vested commercial interests will always seek to distort the system to their benefit through political action and lobbying and where the prevailing ideology supports the notion that the market is always and ultimately beneficial for the economic well-being of the country, politicians will be swayed. That observation is more pertinent to how "patent reform 2007" is being run than how the current patent system is being run.

Wilson wrote of interferences: This leaves the system (and the courts) open to time consuming and economically debilitating wrangles, which corporations—and it is usually corporations, rather than individuals— parlay to their advantage. Of course, Wilson did not mention how few interferences there are, or that it primarily the little guys who are fighting for "first to invent." Wilson neglected to note that, although little guys win fewer than 50% of contested interferences (based on the rather few cases there are), most little guys feel they will be worse off in "first to file," because they don't have the resources to file repeatedly. Even universities have figured out this issue.

Wilson wrote in summary:

[Jaffe and Lerner-->]While no patent system will ever be perfect, the technology world today is awash in patents that should not have been granted in the first place, because they either are not new ideas, are overly broad, or did not sufficiently flesh out the invention at issue to deserve patent protection. (p. x-xi)

In other words, the case for reform stands, and progress is slow.

This is a well-written, well-argued case for the reform of the US patent system and it deserves to be read by anyone with an interest in intellectual property. If a new edition is planned at some time, it would be useful to have more attention given to the systems operating in other parts of the world, and perhaps more attention to the grievous problem of the domination of patent protected US technology.

Separately, Wilson acts as if the FTC report came out after the Jaffe and Lerner book. In fact, the FTC report was already out BEFORE the book was published(To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy. A Report by the Federal Trade Commission, October 2003), as was a draft of the NAS/STEP report, as one can see from their citation in a 2004 paper, PATENT GRANT RATES AT THE UNITED STATES PATENT AND TRADEMARK OFFICE.

Wilson noted of the enablement requirement: The situation is then made worse by loosening the requirement that the patent application be sufficiently detailed to enable one 'skilled in the relevant' art to replicate the invention. In other words, patents are written to hide the true nature of the invention as another defence against competition. What loosening of the enablement requirement? Further, the second sentence sounds more like "written description," an area bollixed up by Eli Kintischabout one year ago in the July 28, 2006 issue of Science.

Wilson does not mention issues discussed in LBE's February discussion of the Jaffe/Lerner book.


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