Sunday, March 02, 2008

The individual inventor as parasite [?]

Further to the BIO report authored by Ann E. Mills and Patti Tereskerz, recall also Reinvigorating the Obviousness Standard: Do We Really Want What We Say We Want? in 89 JPTOS 773 (2007) which in footnote 69 stated:

Preparing the patent application and paying the application fees do not guarantee the grant of a patent. There is some dispute regarding the percentage of applications that result in issued patents. Compare Cecil D. Quillen, Jr. et al., Continuing Patent Applications and Performance of the U.S. Patent and Trademark Office - Extended, 12 Fed. Cir. B.J. 35, 54-55 (2002) (suggesting that PTO issues patents for at least 85% of all filed applications), with Robert A. Clarke, U.S. Continuity Law and Its Impact on the Comparative Patenting Rates of the U.S., Japan and the European Patent Office, 85 J. Pat. & Trademark Off. Soc'y 335, 338-40 (2003) (concluding that PTO grant rate was approximately 75%).

which footnote neglected, among other things, the text: Thus, although the use of the 69% correction factor conceals the problem in the adjusted model [the cited 2002 paper of Quillen and Webster] relative to the unadjusted model, neither model is constructed such that the grant rate must be bounded to be no more than 100%, and as such both the adjusted and unadjusted models of Quillen and Webster are in error. which appears in
4 Chi-K.J. Intell. Prop. 108 (2004).

The 2007 paper of Mills and Tereskerz also neglected to cite the 2006 paper by Quillen and Webster and a 2006 paper by LBE.

Footnote 97 of 89 JPTOS 773 states: Adam Jaffe & Josh Lerner, Innovation and Its Discontents 124 (2004), reprinted in Mark Voorhees, Hang the Jury, Intell. Prop. Law & Bus., Oct. 2004, at 42 ("Many patent attorneys regard juries as excessively sympathetic to patent-holders, being too easily swayed by a be-ribboned patent document. As a result, the general attitude of the legal community - including judges - was that the request of a jury trial was a signal of a weak case.").

The conclusion of 89 JPTOS 773 -->

The data indicate that juries are more likely to find for individuals in patent cases. Since bench trials do not demonstrate a similar win rate differential and evidence does not support a differential selection of cases, jury bias seems to be the most plausible explanation.

The process of human invention is changing. Major technological breakthroughs are less frequently the result of individuals toiling away in their basements and garages; more frequently, they are the work of inventive teams in large corporations or research labs. While the average person may envision Thomas Edison or Alexander Graham Bell when thinking of independent inventors, corporations view many modern day individual inventors as parasites. Corporate infringers have termed them "trolls," n101 "predators," n102 and "extortionists" n103 because these individuals do not practice the invention themselves; in fact, they generally do not manufacture any commercial products. This image of the greedy inventor is relatively new, and it will be interesting to see whether it changes the longstanding love of the heroic inventor. In time, a changing perception of inventors in our society may diminish the jury bias manifested in patent litigation data. For now, the jury favors the individual inventor.

Of the comment about Edison, IPBiz reminds readers that the following comment in the New York Times was about Edison:

"the opinion of experts to the effect that the invention as described in the claim was not, in fact, anything essentially original upon which the inventor could claim a patent." There is also text "it did not rise to the dignity of an invention."


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