Wednesday, October 10, 2007

The broken patent system of Alex Chachkes: fact or fiction?

Alex Chachkes, a registered patent attorney, wrote an opinion piece, Fixing a broken patent system, which begins: A patent is a powerful thing: it's a legal monopoly on an invention for up to 20 years. Of course, patents are rights-to-exclude, not monopolies, as demonstrated for example in the radio patent wars.

Chachkes writes: By rewarding innovation, they created an incentive for inventors to invent more. Patents don't reward innovation; they promote public disclosure of invention: the inventor gets a right to exclude for a period of time and the public gets useful information. Most issued patents do not lead to innovation, much less reward innovation.

Chachkes writes of the NTP patents: I write unremarkable because they disclosed a technology nobody would buy on the open market. IPBiz notes that for years and years, no one would deal with Chester Carlson's xerography. IBM turned down Carlson three times.

Chachkes writes of silly patents: Or perhaps it is because an overworked Patent Office has issued plenty of patents that never should have been. How about Patent No. 5,443,036--a method of exercising a cat with a laser pointer? Or Patent No. 6,960,975--an antigravity perpetual-motion device that defies the laws of physics? Chachkes missed the standard "peanut butter and jelly" and swing patents, but he also missed IBM's "queue for airplane toilet" patent and "outsourcing" application.

Chachkes writes of continuation abuse: Then, in the interim, if anyone creates a new product in the same technology space, you try to draft a new continuation claim to cover it. Never mind that you never envisioned that product. IPBiz notes that it is irrelevant whether the patentee envisioned a given product. What is relevant is whether the patentee has written description support for a patent claim covering the product. If so, the patentee would have a rightful claim.

Chachkes writes of the Eastern District of Texas: Companies often settle for princely sums rather than have a jury predisposed against big corporations, and with no technical knowledge, decide their financial future. Chachkes might note some big companies who have been PLAINTIFFS in ED Tex.

Chachkes concludes: Of course, now there are loud voices complaining that the pendulum is swinging too far against patent holders. If that's the case, we can look forward to another round of equal but opposite reactions, and I can look forward to another column in CNET's Perspectives section.

**Of Dave's comments below.

#1. It is true that the Supreme Court has sometimes referred to patents as conferring monopolies. Just because the Supreme Court makes such remarks in dicta does not mean that patents do confer monopolies. A right to exclude others is not a right to make. The Supreme Court was well aware of this during the radio patent wars.

#2. What the patent statute does is self-evident. In return for a certain type of disclosure, which is made available to the public, a patent holder gets a right to exclude for a certain finite period of time. There is not now, nor has there ever been, a requirement that a patent be shown to be an innovation. The US patent statute now, just like the Venetian statute in 1474, is to encourage folks with ideas to come forward and make them public known, without concern that someone will just steal them. Arguably, innovation might proceed faster (for a while) if the bigger guy could steal ideas. But after a while no little guys would come forward, and the big guys would merely be trying to sell their old stuff, again and again.


Blogger Unknown said...

1. You write: "Of course, patents are rights-to-exclude, not monopolies". Wrong, they're both.

"A patent confers a monopoly. So this court has decided in the Paper Bag Case, supra, and in many other cases." Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, 37 (1923); see Pfaff v. Wells Electronics, Inc., 525 U.S. 55, 63(1998)("the patent system represents a carefully crafted bargain that encourages both the creation and the public disclosure of new and useful advances in technology, in return for an exclusive monopoly for a limited period of time").

2. You write: "Patents don't reward innovation; they promote public
disclosure of invention". Wrong, they do both.

"Federal patent law reflects the objectives of Congress, which include 'seek[ing] to foster and reward invention,' 'promot[ing] disclosure of inventions to stimulate further innovation and to permit the public to practice the invention once the patent expires,' promoting 'the stringent requirements for patent protection ... to assure that ideas in the public domain remain there for the free use of the public'", Ultra-Precision Mfg., Ltd. v. Ford Motor Co., 411 F.3d 1369, 1378 (Fed. Cir. 2005), quoting Aronson v. Quick Point Pencil Co., 440 U.S. 257, 262 (1979).

3. You write: "Chachkes missed the standard 'peanut butter and jelly'
and swing patents". So? Doesn't that support the article's point, that there are tons of silly patents?

There are other errors in your analysis.

7:58 PM  

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