Monday, January 16, 2017

Politics in the academia of intellectual property?

A post at PatentlyO on an article by Jonathan Barnett titled Has the Academy Led Patent Law Astray? produced some comments about Mark Lemley:

I doubt that few within the patent academy are willing to ideologically challenge someone like Lemley as his ability to alter career prospects is probably quite real.


Also, I couldn’t agree more regarding Lemley and his influence over academia. He has also gotten a lot of these professors their jobs. Lemley is unethical and should be taken down based on his unethical conduct.


Of the 40+ names that signed the proposed patent “deform” bill some years back, more than 1/3 had ties to large serial infringers, with of course, “Professor” Lemley being the biggest paid for name on the list. He and his minions are fond of putting their names on these faux academic studies without revealing their representation of their large infringing clients (Google for example).

As to the impact of Professor Lemley, one notes that the word "Lemley" appears 203 times in the last six months on the LEXIS law review database. For example, an article titled "Are universities special? ( 49 Akron L. Rev. 671 ) has as footnote 4: See Mark A. Lemley, Are Universities Patent Trolls?, 18 Fordham Intell. Prop. Media & Ent. L.J. 611, 612-13 (2008) ("Universities are non-practicing entities. They share some characteristics with trolls ... but they are not.")
And an article titled "THE CIRCULAR LOGIC OF ACTAVIS " has: n129. See Lemley & Shapiro, supra note 126, at 75 ("When a patent holder asserts its patent against an alleged infringer, the patent holder is rolling the dice.").
The word "patentlyO" appears 52 times and the word "ipwatchdog" 53 times. The word "crispr" appears 13 times.

More than five years ago, there was some discussion about Lemley's theory on the "myth of the solo inventor," which got into both Edison's light bulb and Lemley's assertion that the inventors of the transistor thought it would be useful only in the context of hearing aids. The support for the latter was a non-existent article supposedly in the New York Times. There was an article in the New York Times, the day after the public release by Bell Labs of information on the transistor, which article was mainly about the radio show "Our Miss Brooks." Thus, more in keeping with history, it was the New York Times, not the inventors of the transistor, who did not recognize the potential of the transistor. Lemley was wrong to refer to a non-existent article and wrong not to appreciate the actual significance of the Times article.

The 2011 post in "written description" on "myth" had some commentary by Oullette:

Thanks for citing your article about Lemley's claim that "[t]he transistor was originally conceived primarily as useful in hearing aids" (to make it easier for others reading these comments, here is a link to your article on Hein, and the relevant page is 86). I haven't carefully checked your sources (just as I don't carefully check the sources of articles I blog about, since this is a blog, not a law review), but it looks like you are right that this is as much a myth as the other myths Lemley debunks!

Lemley: Myth of the Sole Inventor

**As to Edison, apart from the fact that Edison's basic light bulb patent does not mention bamboo at all, the key discovery was as to "high resistance" (which was not part of the work of prior investigators). See the discussion in the IPBiz post

Shaver on Edison's light bulb: "Scientifically speaking, his team’s discoveries were neither the first, nor the most important."

**In passing, from Jason Rantanen, The Doctrinal Structure of Patent Law's Enablement Requirement , 69 Vand. L. Rev. 1679 (2016) :

See Jason Rantanen, Patent Law's Disclosure Requirement, 45 LOY. U. CHI. L.J. 369, 370 n.1 (2013). But see J. Jonas Anderson, Secret Inventions, 26 BERKELEY TECH. L.J. 917 (2011) (analyzing the situations in which the disclosure function operates and suggesting changes to encourage the use of secrecy by inventors where appropriate); Mark A. Lemley, The Myth of the Sole Inventor, 110 MICH. L. REV. 709, 745 (2012) ("Disclosure theory cannot, however, support the modern patent system."). For a discussion of why enablement might matter even irrespective of whether disclosure theory actually supports the patent system, see Lisa Larrimore Oullette, Do Patents Disclose Useful Information?, 25 HARV. J.L. & TECH. 545 (2012).

**In passing, note post at Huffington by Michelle Lee Patent Quality is Here to Stay


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