Monday, March 16, 2009

IAM blog re-cycling Lemley's "rational ignorance"?

In a 15 March 09 post titled Is it time to end patent examinations?, the IAM blog (Joff Wild) shamelessly re-cycles the old Lemley-ism presented in "rational ignorance." Bo Heiden, the deputy director of the Centre for Intellectual Property, states:

In the knowledge economy patents need to take on the role of building rather than blocking. To create such a world firms will need to focus more on developing their patents focused on business goals not bonus schemes, as well as spending a great deal of time understanding the patents of others. In this world patent examination (note: examination not patents as such) becomes less important, as patents become more of a means to objectify knowledge for transfer as opposed to a means of blocking one another. Since only high quality patents are commercialised - studies suggest only 10% - and these 10% are scrutinised in depth, why is there a need to examine patents at all? Most examinations are irrelevant (the 90%) and the others are redundant. Just stamp all patents as valid and fine the hell out of those actors that later try to use those that were obviously not valid when submitted. Let the firms do more of the work as they need to do this anyway in the knowledge economy.

Although this is basically a copy of Lemley's (bad) idea [and it may be Lemley was not the first], there is no mention of Lemley or of the various subsequent criticisms of Lemley's idea. If this were a patent application, one might be finding inequitable conduct here.

See various posts on IPBiz, including the following, and check for cites to Lemley's 2001 article in the Northwestern University Law Review.

from 2004: Putnam and Tepperman revisit rational ignorance

Further criticism of Lemley's "rational ignorance" at the USPTO

**comment submitted-->

It's truly sad when the IAM blog stoops to re-cycling an eight-year-old Lemley-ism, without even giving credit for the bad idea.

The first purpose of the patent system is to make useful information public (see for example 8 JMRIPL 80). To this end, not examining patent applications is about as reasonable as not reviewing/refereeing science papers. It's about the information, stupid.

See also

**second comment submitted-->

Thanks for the reply. I do think you missed several points.

First, the issue is whether or not to EXAMINE applications. By EXAMINING applications, one weeds out applications which are not useful, not novel, obvious, not enabled, or not even described. In the world of non-examination, an inventor would have to dig through a world of crap that would make up "published" applications. Reading Jules Verne doesn't teach you how to make a submarine or a rocket. If the IT people are complaining now, imagine what they would say in a world of non-examined applications. So, your bringing up publication, as distinct from examination is a bit of a red herring to this argument.

Second, in the world of patents, inventors are charged with knowing prior publications anywhere in the world. An inventor can't say, I'm from Sweden so I don't have to know what's going on in the United States. One would hope someone billed as a "prominent IP thinker" would be aware of the literature of the world, especially when the previous literature is directly on point to the argument at hand, examination of patent applications.

Of relevance to the similarity between Heiden-2009 and Lemley-2001, note text in Lemley's 2001 SSRN abstract:

Using available data regarding the cost and incidence of patent prosecution, litigation, licensing and other uses of patents, he demonstrates that strengthening the examination process is not cost effective. The core insight is that very few patents are actually litigated or licensed; most simply sit on a shelf unused, or are used only for noncontroversial purposes like financing. Because of this, society would be better off spending its resources in a more searching judicial inquiry into validity in those few cases in which it matters than paying for a more protracted examination of all patents ex ante.

As a third point, the issue of copying sometimes arises in the US, whether in speeches or in writings. I am not aware of anyone yet using a defense such as: Bo is based in Sweden and Qatar, I am based in the UK. Why either of us should mention Mark Lemley is not immediately obvious to me - even if this is a subject that he has written/talked about. Generally, a basic point of a patent system is to publish information so people don't "reinvent the wheel," and pass off as "news" something discovered eight years earlier, and subsequently criticized as not workable.

An irony here is that "patent reformers" who criticize patent offices for not finding prior art tend to show a remarkable ignorance of "prior art" relevant to patent reform.

<-- end

For reference

the SSRN link to Lemley's paper published in Northwestern University Law Review, Vol. 95, No. 4, 2001

**UPDATE. 2 Sept 09, to 271Blog

The arguments against a registration system are similar to those against rational ignorance. The patent system is about public disclosure of inventions which are (among other things) novel and nonobvious. We don't want the clutter of a registration system.


Is the Jaffe/Lerner Analysis of Patent Law Correct?

More on Mark Lemley's "rational ignorance" at the Patent Office

Detailed claim construction at the USPTO exam level is a Napoleonic code approach to a system already crumbling.


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