Unintended Consequences Meet Patent Law Reforms

from the making-the-system-worse dept

Fri, May 19th 2006 3:49pm — Mike Masnick

For all the talk about patent reform these days, it's unfortunate that every time we see reform proposals, it looks like they'll make the system worse. The latest proposal is winning lots of applause from some in the tech industry, but that doesn't mean it's actually a good proposal. The basic plan is for the government to spend money educating judges to be better informed on patent issues, including hiring "specially appointed clerks with patent expertise." On the face of it, that sounds great -- and the article even suggests this could help with the "patent troll" issue, though never bothers to explain why or how. To understand, though, why this may be a bad proposal, you just need to look at history. About twenty-five years ago, due to various complaints about jurisdiction shopping and other issues, the government created a single federal court to handle patent appeals, the CAFC. At the time, there was some (justified, it turns out) fear that this court would be packed with "patent experts" who came from a world where they benefited from more, not better, patents. Indeed, the court was quickly dominated by former patent attorneys, who quickly changed some fundamental aspects of the patent system: expanding the types of things that could be patented and upholding the validity of many, many more patents than the courts had done previously. This, in turn, resulted in even more of an effort by companies to secure questionable patents, as potential patent holders recognized that there was an even higher chance that those patents could be used to bully others -- as we're seeing in so many cases today. This was exactly the fear that some had raised about a patent-focused court with "undue specialization." That's why it's not clear why increasing the "undue specialization" will help. It's not explained what kind of "education" these judges will get, but it's likely to be one that comes from those who stand to benefit from even more patents, rather than those who are actually focused on bringing the patent system back to it's original purpose: to promote innovation.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

22 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

China Law Blog, 20 May 2006 @ 7:56am

Patent Law Reforms
So true. So often change happens simply because enough people have pushed for it long enough. So often, people act as though there are absolutely no downsides to the new ideas, without even realizing there are always downsides that we don't even know about. I'm certainly not saying change is always bad, but change is always change and we always need to be careful and thoughtful.
[ link to this | view in thread ]
Boodzy, 20 May 2006 @ 8:39am

Education is always a good Idea
Really, Education is always a god place to start. We dont want to constrict legitamate patents but we do want to cut back on questionable ones. The best way is to not give out patents to Ideas that are plainly too similar or repetitive. There is a balance but some new ideas and education can only help.
[ link to this | view in thread ]
Oscar F., 20 May 2006 @ 11:11am

Educate the real source of this problem
Why not start by educating those who are the real source of today's patent problems? The US Patent Office.
[ link to this | view in thread ]
Anonymous Weasel, 20 May 2006 @ 11:26am

Still waiting . . .
I'm still waiting for the definitive empirical research establishing a connection between patenting and innovation. Last time Congress commissioned a study (1958) no relationship could be discerned and despite some suggestive findings here and there since, there's still no convincing connection. Some have even argued that contemporary patents can INHIBIT innovation.

So . . . why allow the scope of patentable material to grow and the strength of patents to increase?

Oh yeah . . . it makes patent attorneys rich. My bad.
[ link to this | view in thread ]
DaveS, 20 May 2006 @ 11:41am

Ignorance is bliss?
So now you're arguing that ignorance is bliss?

I can't see how a little education is going to hurt. Good judges know how to ask questions that get at underlying motivations. Critical thinking is a skill they use all the time in the courtroom and I doubt they would put it aside in the educational process.
[ link to this | view in thread ]
Mike (profile), 20 May 2006 @ 12:40pm

Re: Ignorance is bliss?
So now you're arguing that ignorance is bliss?

That's a rather ridiculous summary of what I wrote. I did not say that ignorance is bliss, but rather that the type of education they're talking about will be so one-sided, it could have the opposite effect. That is, in some ways it could make the system even more ignorant by focusing on certain myths of the patent system, rather than facts. Since there are many myths that are accepted as fact, this is a problem.

I have no problem with a more educated judiciary, but how they're educated is important -- and this bill seems more focused on educating them only from the side of those who benefit from more patents.
[ link to this | view in thread ]
DaveS, 20 May 2006 @ 3:03pm

Re: Re: Ignorance is bliss?
Judges are faced with one-sided arguments all the time, it's the very nature of the adversarial process.

As it stands, they often receive their training in patent law from the lawyers in the cases they are trying. I would prefer they receive it from someone who isn't trying a case before them. It may not be ideal, but I think it's better than the current situation.
[ link to this | view in thread ]
markb in nj, 20 May 2006 @ 4:50pm

Patents and COPYRIGHTS
Let's not only hold Patents as the problems.
Think of COPYRIGHTS. THink Mickey Mouse, originally copyright in around 1921, is STILL enforcable as a copyright because of CONGRESS messing around with the intellectual Property laws (IP)

Or for example the DCMA of 2000, which is up for an update this year, and the RECORD INDUSTRY (RIAA) is trying to have a provision that the FBI establish an antipiracy squad for ENFORCEMENT...

Or, how HOLLYWOOD again is screwing up with the lawmakers and lobbying for THEIR own modifications too

Sucks....
[ link to this | view in thread ]
anon, 21 May 2006 @ 7:39am

Re: Still waiting . . .
I'm still waiting for the definitive empirical research establishing a connection between patenting and innovation
Here's one:
Against Intellectual Monopoly
result? there is no relationship...still.
[ link to this | view in thread ]
Trevor Hill, 21 May 2006 @ 7:45am

Inaccuracies
Your article is misleading and factually incorrect. "Indeed, the court was quickly dominated by former patent attorneys..." Indeed, it has not been at all. You merely need to look at the biographies of the judges.

Most patent attorneys would love to have more judges on the Federal Circuit with previous patent experience, simply to allow them to make more informed decisions, but there aren't many at all.
[ link to this | view in thread ]
AaronD, 21 May 2006 @ 7:47am

Evidence to support article's claims?
Can the author provide any support for the statement that the CAFC "was quickly dominated by former patent attorneys"? This has not been my experience. When reading decisions from the CAFC, you are lucky if the three-judge panel has one with any patent experience before they became a judge. Since the author's assertion goes to the core of his argument, I would like to see some support. Aaron
[ link to this | view in thread ]
oldpopsie, 21 May 2006 @ 11:11am

It's the type of education that matters.
The problem with both the specialized court and the proposal to educate judges in the patent specialties is that both of them focus on paten law rather than the kind of scientific background that would help weed out spurious patents and patent claims.
Most of the time there is (or at least should be) a question as to whether a patent is actually valid as a new idea, or infringes on an existing one. The expansion of patent law, however, has diverted attention from this to seeing how finely some attorny can parse an idea to squeeze some dollars out of even the most minor variations.
[ link to this | view in thread ]
Rocket Scientist, 21 May 2006 @ 3:13pm

If it ain't broke
dont try to fix it...
[ link to this | view in thread ]
Rocket Scientist, 21 May 2006 @ 3:16pm

can spell it but I dont know what it means
Mike needed a patent attorney to tell him about the CAFC. Now he uses the acronym all the time but probably doesn't know what it stands for (until he looks it up on the Internet)...
[ link to this | view in thread ]
Rocket Scientist, 21 May 2006 @ 3:18pm

Get used to innaccuracies
Trevor, this site is really more about bashing the patent system to try to "change the world" than about accurately reporting facts. Mike is personally trying to foment discontent. Don't bother trying to point anything out though. He's in his own little world.
[ link to this | view in thread ]
Mike (profile), 21 May 2006 @ 5:05pm

Re: Inaccuracies
Your article is misleading and factually incorrect. "Indeed, the court was quickly dominated by former patent attorneys..." Indeed, it has not been at all. You merely need to look at the biographies of the judges. Most patent attorneys would love to have more judges on the Federal Circuit with previous patent experience, simply to allow them to make more informed decisions, but there aren't many at all.

It's true that not *all* have former patent experience, but those with patent experience tended to take the lead in many patent cases. This is well established in the research surrounding the history of the CAFC.

Finally, as for "more informed" decisions, you mean more informed about the legal issues, not the technological or economic issues -- and that's where many of the problems come in. Things like making business methods and software patentable seem silly to technologists, but reasonable to lawyers. And, in the bigger picture of what the patent system is supposed to encourage, they seem particularly backwards.
[ link to this | view in thread ]
jack, 21 May 2006 @ 9:30pm

Re: Inaccuracies
"Most patent attorneys would love to have more judges on the Federal Circuit with previous patent experience"
PRECISELY
Most patent attorneys would love it if judges were even more patent-friendly than they are now. That is probably the most damning statement about what is wrong with this proposal yet stated. If the attorneys are for it, I'm against it.
[ link to this | view in thread ]
Joe Blow (by Mike), 22 May 2006 @ 8:57am

Precisely
I just dont get it, I hate patents, and anyone who says differnt must be patent-friendly, which is bad, I think.
[ link to this | view in thread ]
Mike (profile), 22 May 2006 @ 9:34am

Re: Precisely
I just dont get it, I hate patents, and anyone who says differnt must be patent-friendly, which is bad, I think.

Of course, anyone who reads this site knows this is false. I don't "hate" patents. I simply feel that the patent system is currently designed more to hold back, than help, innovation. I back up my statements and I stick around to discuss the actual issues.

So, no, I don't think anyone who disagrees with me is bad (that should be clear from what I write). But if people disagree with me, I like to find out why to see if we might both become better educated.
[ link to this | view in thread ]
Trevor Hill, 22 May 2006 @ 11:24am

Re: Re: Inaccuracies
The reason is not to gain some sort of biased decisions. If you think judges will find for patentees just because they had some patent-related experience, you don't know much about the way the system works.

The main reason patent attorneys would want that is simply so that they're not all English or history majors, and don't miss or fail to understand the technical legal rules of patent law.

You argue people with such experience are inherently biased. I argue they are more capable of properly deciding a case, regardless of their biases.
[ link to this | view in thread ]
Mike (profile), 22 May 2006 @ 11:56am

Re: Re: Re: Inaccuracies

You argue people with such experience are inherently biased. I argue they are more capable of properly deciding a case, regardless of their biases.

The problem is that the education they're talking about is *only* about people versed in patent *law*. They're not looking for education on the economics or the technology -- which is actually what's needed to improve the patent system.

If the focus is just on patent law, then you have a situation where it's a hammer and a lot of nails.
[ link to this | view in thread ]
alex, 1 Nov 2010 @ 6:02am

Well why do we need to worry about this law?
[ link to this | view in thread ]