Wednesday, June 04, 2008

Harold Wegner takes a walk on the dark side

In an IPFrontline post titled Keys to 111th Congress Patent Reform, Harold Wegner writes:

If judged by the current Congressional stalemate, an apparently complete lack of understanding exists within bio/pharma/chemistry as to the needs of essentially all other mainstream industries where litigation costs (in red) far outweigh patent profits (in blue) as explained by Professors James Bessen and Michael J. Meuer.

IPBiz notes that an important word here is "mainstream." Mainstream companies, including IBM, told Chester Carlson to take a hike when he approached them about xerography. Mainstream industries are not into innovation. They want to sell you the products they are already making. There is the classic story about how RCA placed its transistor research under the administration of its vacuum tube division, and how that worked out.

If there is evidence that "mainstream" industries are being victimized by patent fraudsters, that's one thing. But when members of the Coalition for Patent Fairness continue to be found guilty of patent infringement (as for instance Hewlett-Packard was in the last week), that's something else. That suggests the mainstream is yesterday's news, copying the real inventors.

Ironically, Harold Wegner, mainstream IP person, defending "mainstream" industry, is perhaps appropriate. Wegner wrote:

Patent Failure provides an economic analysis based upon data supplied by some of the leading patent academics of the United States, including data shared by Circuit Judge Kimberly Moore. The back cover of the book contains the enthusiastic endorsement of Professor Mark Lemley of Stanford University. Numerous other academics in both law and economics are acknowledged.

Further, Wegner wrote:

Since Patent Failure represents the view of mainstream industry outside biotech, pharmaceuticals and chemistry, the perception manifested by Bessen-Meuer becomes the reality for the foundation for patent reform debates in the coming Congress.

IPBiz suggests that the walk-away by the Coalition for Patent Fairness once the damages issue was not addressed, AND labor union opposition to the patent reform bill will be significant factors altering the way patent reform is handled in the next Congress. Separately, Wegner gives short shrift to the opposition from universities and from individual inventors, as if they didn't exist.

Wegner could check his spelling:

In 2001, when Eli Lilly lost its patent to Prozac at the Federal Circuit, it’s [sic] market cap dropped $ 36 billion in one day, roughly triple what the authors say is the annual profit for the entire pharmaceutical and chemistry industries in one year.

Separately, one notes that Wegner's IPFrontline piece, published on 21 May 2008, makes no mention of an earlier IPFrontline piece on Bessen/Meurer, published on 29 March 2008, titled Now There You Go Again, which ended with the words:

One wonders whether the empirical studies of Bessen and Meurer will prove more robust than the 97% patent grant rate of Quillen and Webster.

See for example Getting the Patent Reform Wars on Track.

And, if you were wondering, the “endorsements” of the book on the Princeton webpage are by Lemley, Maskin, and Mark Chandler, senior vice president and general counsel, Cisco Systems (the superior of Rick Frenkel, the formerly anonymous “patent troll tracker.”)

Prior art may not be in Wegner's vocabulary.

One recalls that Wegner was involved in the Quillen/Webster business:

If one looks at the second paper of Quillen and Webster (wherein the 97% grant figure is "qualified", 12 Fed. Cir. B.J. 35) there is text:

Numerous authors have addressed the problem of USPTO quality. referencing among other papers Harold C. Wegner, Enronesque Patent Bookkeeping: Two-For-One Continuation Double Counting and American Patent Flooding (June 14, 2002) (unpublished manuscript, on file with author at Foley & Lardner).

This paper, seemingly existing only in a footnote of Quillen and Webster, otherwise lives a Sikahema existence, apart from the "reference by imagery" of John R. Thomas.



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