Sunday, December 30, 2007

Barack Obama should listen to inventors, not professors, to formulate patent policy

TMCnet has a rather dull post titled: Barack Obama's Technology Position Paper: Part 5 of 5 which includes the text:

The most forthright of Obama's proposals in this section is a plea to Reform the Patent System. He, as do I, agree the current Patent laws stifle innovation by allowing patent trolls to gum up the process.

IPBiz will help the less-informed readers of TMCNet to connect some dots. First, we'll connect the "patent troll" dot [above] through the omitted citation [to Lemley] for gold-plating patents [below] to the entirely unmentioned position of Lemley on patenting laws of nature, a position normally associated with trolls.

The TMC post continues:

Here's what Sen. Obama would like to see in terms of Patent reform:

"A system that produces timely, high-quality patents is essential for global competitiveness in the 21st century. By improving predictability and clarity in our patent system, we will help foster an environment that encourages innovation. Giving the Patent and Trademark Office (PTO) the resources to improve patent quality and opening up the patent process to citizen review will reduce the uncertainty and wasteful litigation that is currently a significant drag on innovation.

"With better informational resources, the Patent and Trademark Office could offer patent applicants who know they have significant inventions the option of a rigorous and public peer review that would produce a "gold-plated" patent much less vulnerable to court challenge. Where dubious patents are being asserted, the PTO could conduct low-cost, timely administrative proceedings to determine patent validity. As president, Barack Obama will ensure that our patent laws protect legitimate rights while not stifling innovation and collaboration."

As discussed on IPBiz, the gold-plating idea has been shopped-around for a while.
Gold-plating patents: been there, proposed that...
Jaffe/Lerner: "Our patent system is the enemy of enterprise" [Note within the post the text: Lemley's backing Metabolite, for patenting laws of nature.]

So, Obama and TMC are "passing off" old, shop-worn goods as some kind of new policy initiative. See also
And, the shop-worn idea comes from a guy who backed a patent claim (in the Metabolite case) that most "reformers" considered patenting a law of nature, which would be the ultimate in patent trollism.

Separately, various reformers have touted post-grant reviews (oppositions) as low-cost, timely administrative proceedings. Christopher Logan wrote in 2005: Currently, patent litigation costs on average about $ 1 million. It has been estimated that opposition proceedings may cost an average of only $ 100,000. This cost difference matters little to the small firm or independent inventor who cannot afford either amount. However, this difference in cost will certainly factor into large corporations' cost/benefit analysis when considering whether or not to challenge a patent, making it more likely that such a challenge will occur. See generally, Post-Grant Opposition: a Bad Idea This becomes another area wherein Obama is dead wrong on the facts.

A problem is that Obama's position is basically copied from that of certain law professors, and manifests no inventive thought by Obama. If Obama is interested in listening to people who are part of the system and drawing from their first-hand experience, maybe he could start by reading what inventor George Margolin has to say.


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