Tuesday, April 28, 2009

Joe Mullin on copying

On April 26, IPBiz had a post titled Mike Masnick (TechDirt) takes on Gary Odom (PatentHawk), which mentioned a statement made by Gary Odom about Joe Mullin as noted by Masnick:

Amusingly, when Joe Mullin from IP Law & Business called Odom to comment, Odom refused, saying: "You're a hack job, man." Always a pleasant guy, that Odom.

Later on in the post, IPBiz alluded to a previous event, in which Mullin pushed some thoughts from Mark Lemley about how most patent infringement suits do not involve allegations of "copying." IPBiz had previously noted that this was not particularly surprising, because an allegation of "copying" is irrelevant to an assertion of patent infringement: copying is not an element of patent infringement. If one does intentionally copy, one can be liable for willful infringement, which can lead to a tripling of damages.

The relevant (earlier) post on TechDirt was titled How Reporters Contribute To Misconceptions About Patent Lawsuits and stated

Joe Mullin has another fantastic post, discussing how way too many reporters, in covering patent disputes, mislead the public into thinking that the patent holder is accusing another company of copying its invention. The truth is that it's very, very rare for a patent infringement lawsuit to actually involve a company that copied (or, as the patent system supporters would falsely claim, "stole") someone else's invention. Usually, it's about companies coming up with a similar offering independently. Yet, as Mullin points out, in the recent reporting on Picsel suing Apple for infringement, reporters, such as those at CNN wrote that Picsel claims "Apple's hot-selling iPhone and iPod Touch devices incorporate Picsel-patented technology."

That implies much more than the lawsuit really says. It implies that Apple actually took or copied a specific "Picsel-patented technology" and placed it in the iPhone. But the truth is that no such claims are actually made in the lawsuit. Mullin suggests that reporters covering such patent lawsuits should make this much clearer, even suggesting something along the lines of the following:
"Picsel, which does not claim that Apple copied its patent or products, is asking for a royalty to be paid on all iPhones sold in the United States."
While that exact wording may not make sense, it does seem important to get more people to realize that patent lawsuits are almost never about the actual copying of inventions, despite what patent supporters and lazy reporters might tell you.

TechDirt linked to Mullin's blog, which stated:

CNN Money carried a short piece on the Picsel v. Apple lawsuit that used terminology that's pretty typical in reporting on patent lawsuits. According to CNN, Picsel claimed "that Apple's hot-selling iPhone and iPod Touch devices incorporate Picsel-patented technology that facilitates rapid redrawing of content displayed on devices' screens."

Now, that sentence is literally true and accurately reported. But there's a kind of breezy vocabulary around reporting on patent litigation that is quite problematic. It allows the patent-holder to strongly imply they've been copied, even though most of the time there's no copying even being alleged. Picsel is not claiming that Apple copied its patents or products, even though it's got a big incentive to put whatever evidence it has on the record.

Since there's evidence that most people believe—incorrectly—that patent lawsuits are about copying, shouldn't reporters go out of their way to clear about just what is being alleged?

How about adding: "Picsel, which does not claim that Apple copied its patent or products, is asking for a royalty to be paid on all iPhones sold in the United States." (substitute the appropriate product & damages demand; I'm not familiar with the details of this case.)

I think that gets two points across: 1) there is no copying accusation here, and 2) these allegations have an effect on consumers and the marketplace.

IPBiz asks: did the initial story say Apple copied? No. The story said: Apple's hot-selling iPhone and iPod Touch devices incorporate Picsel-patented technology. If infringement were found, that statement would be entirely accurate. The infringement analysis involves a comparison of an accused product or process to a claim in a patent. If infringement is found, then the accused product did incorporate the technology, as defined by the words of the claim.

IPBiz notes that there is no reference given for the statement: Since there's evidence that most people believe—incorrectly—that patent lawsuits are about copying. Further, the impact of this statement depends on how "copying" is defined. If copying (or stealing) includes utilizing technology that is publicly known to belong to someone else, then using the term "copying" might not be inappropriate. The documents are called "patents" because they are publicly available, and their public availability places the public on notice. One has the aphorism "ignorance of the law is no excuse." Most members of the public don't know the contents of all laws, but a defense "I didn't know the law" is destined to fail. That patents are public is supposed to minimize needless duplication of research efforts. We do not want people to spend time re-inventing the wheel. People are SUPPOSED to read the patents and not waste time doing that which has been done before. [In passing, Mullin does not provide evidence about people/copying in an earlier article titled The Inventor's Tale unless anecdotal opinions constitute evidence.]

IPBiz also notes that Mullin did not cite Lemley/Cotropia in the post mentioned by TechDirt, but did cite them in an earlier post which includes the text:

Those who favor strong patent rights often wave the banner of the "independent inventor." I've heard many patent holders—and many patent lawyers—praise strong patents as needed to protect inventors' rights. But when we look at the litigation landscape—the public record of how patents are actually used—we find strong evidence that nearly all accused infringers developed their technology on their own.

So, who are the nation's "independent inventors?" Are they patent-holders busy denouncing patent reform? Or are they the people and companies who must defend themselves against lawsuits brought by those patent-holders?

If independent invention was a defense against a patent infringement allegation, the data suggests we would see a sharp drop in patent litigation. Would it be a 90 percent drop-off? That's not an unreasonable guess, but it's tough to know for sure. As Lemley pointed out to me, such a change could encourage some to file on more dubious claims, or could lead to more licensing as opposed to litigation.

The idea that "independent invention" is a desirable thing goes against the objective of the patent system. There is a very good reason that independent invention is not a defense and never has been. We don't want resources wasted on ideas that are already known. Mullin needs to understand that.

Joe Mullin wrote in comment to the earlier IPBiz post:

Lawrence, I'm perfectly aware that copying is irrelevant in patent infringement. Did you even read my entire post? I link back to an earlier post in which I discuss the issue of copying in depth (and yes, it's based on Lemley's research).

Copying, or the lack thereof, _is_ highly relevant to all aspects of the patent debate as long the public and Congress *believe* that patent lawsuits are about copying or "stealing." That's not a "Lemley-ism", that is just reality -- backed up by many sources.

IPBiz notes that the posts of Mullin (and TechDirt) cited by IPBiz were about reporters, in covering patent disputes, misleading the public. They were not about "the patent debate" or what Congress might believe. The key sticking point in patent reform is about apportionment of damages, not about what anyone thinks about copying. The study of Lemley and Cotropia, pushed by Mullin, confirmed that plaintiffs don't assert unnecessary elements in a cause-of-action, something that ought to be self-evident. In Mullin's pushing of a non-issue (reporters suggesting copying in the absence of much evidence in litigations for assertion of "copying"), we arguably have a reporter misleading the public. The issue is whether there are infringers who are making, using, selling or offering to sell products that fall within the scope of valid patent claims. Some people may call this copying or stealing; it is patent infringement, it's against the law, and we don't want to encourage it.

***In a discussion of "patent reform," one finds "copying" to arise only in the context of willful infringment. Placing the absence of "copying" in litigations as an important issue in patent reform (or in reporting) is simply recycling an irrelevant Lemley-ism.

***Of Mullin's text in Inventor's Tale:

Other areas of intellectual property law, including copyright, trademark, and trade secrets, all require proof of actual copying to hold a defendant liable.

In copyright, a close similarity to the original work can be used to infer access.
In trademark, the rule is "likelihood of confusion", and those people who come "too close" to an earlier mark WILL BE found to be infringers (or denied a mark in the first place if attempting to register). Trademark law is designed to protect the CONSUMER from confusion. If the consumer will suffer a likelihood of confusion, it does not matter what the intent of the accused infringer was.

**UPDATE. 9 July 09



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