Former Chief Judge Of Patent Court: We Need To Strengthen, Not Weaken, The Patent System Because [Reasons]
from the insert-logical-fallacy-here dept
We've written a few times about Judge Paul Michel, the former Chief Judge for CAFC, the appeals court that handles all appeals in patent cases. He's an out and out maximalist, making claims that defy reality and suggesting a truly surprising ignorance of how innovation actually works today.And yet, he refuses to give up his idealistic (and completely incorrect) notions of how patents work. The latest is a piece he's written for A Smarter Planet, a blog owned by IBM, in which he attempts to hit back at patent critics while arguing that what the US really needs is stronger patent protection, not weaker, including protection for things like software. The article is full of questionable assumptions combined with logical fallacies. I'm sure Judge Michel is intelligent and knowledgeable (you don't get as far as he did otherwise), but he does his own legacy a disservice by making arguments like the one he expresses here:
So in April, 1790, the first Congress enacted the first Patent Act. Over the next two centuries, the Act was amended and strengthened regularly, because successive Congresses observed industrialization and economic growth all around them, as under the Founders' system, the United States went from importing nearly all manufactured goods to itself manufacturing all the products it needed and prospering as a major net exporter.This is a nice story -- and it's one that we've heard before. Unfortunately, it's not supported by the actual history. That history shows that the continued patent expansionism post-dated, not pre-dated significant expansions in innovation. That is, rather than encourage innovation, the increases in patenting almost always came after the innovation, when the early innovators then ran to the government to seek to block out follow-on innovations and competition from disruptive new upstarts. Furthermore, study after study has shown absolutely no evidence that strengthening a patent system leads to greater investment in innovation. Instead, it shows greater investment into patenting.
Within just a little over one hundred years, America surpassed all other nations in wealth and technology, partly because of its strong patent system, aided by wide oceans, abundant natural resources, and universal public education. Throughout the 19th century American inventors outpaced their counterparts elsewhere. During the 20th century, the American patent system helped stimulate the computer revolution as well as astonishing advances in medicine, including creation of whole new fields, such as bio-technology. After a slump in the 1970s, when Japan replaced America as the leading maker of consumer electronics, in the last two decades of the century our nation regained its rapid growth and technological leadership.
Ironically, criticism of patents and especially of the U. S. Patent and Trademark Office is peaking just as an array of reforms are taking hold. Over the past nearly four years the extraordinary leadership of former IBM executive David Kappos has greatly upgraded PTO operations. The courts, too, have instituted reforms in damages and other areas of controversy. Congress has responded by enacting the America Invents Act, which after a decade of neglect and fee diversion finally has provided the PTO with the resources it needs. The AIA also launched a Patent Pilot Program to have volunteer judges in over a dozen districts largely specialize in managing such cases. And, the private sector has stepped in to help train patent examiners in the newest technologies. In light of all this, now is the time to rely more, not less, on the American Patent System.I'm not sure what's "ironic" here. The "reforms" that Michel mentions had nothing to do with the key complaints many made against patents: that they were being utilized by trolls to stifle real innovation, that patents themselves were overly broad and vague, that the damages awarded in patent infringement cases were excessive and had no basis in reality. Earlier versions of the AIA attempted to address some or all of those problems, but they were all left on the cutting room floor after patent supporters whined about them.
As for the "patent pilot program," it's difficult to see how that solves anything. In fact, it could actually make the problem worse, not better. As we've discussed, CAFC itself, which Michel used to lead, was the result of a similar "experiment," in which it was believed that centralizing all patent appeals cases to a single court, where a few judges would be "experts" would lead to better outcomes. But it did the opposite. That's because the judges had little contact with actual innovators, but plenty of contact with patent lawyers, who benefited from massive expansion of patent laws. And so they heard one side of the story over and over again, leading to massive expansion. Doing the same thing at the lower courts, and giving more power to a few judges who will be continually exposed to patent lawyers, is likely to create the same push towards expansionism in the district courts as well.
Nevertheless, some commentators suggest excluding whole business sectors, such as software, from patent eligibility and greatly shortening the patent term for other technologies. A few go so far as to say that only pharmaceutical firms really need patent protection. But the behavior of hundreds of companies in dozens of technologies suggests otherwise. Witness IBM: for the past 20 consecutive years it has received more U.S. patents than any other company in the world. Examples of other companies that rely on patents include Microsoft, General Electric, General Motors, Caterpillar, DuPont and Procter & Gamble. Ignoring such facts, certain commentators even argue that patents deter more innovation than they promote.This assumes, entirely without proof, that companies that get patents do so because they promote innovation. This is laughable and simply untrue. Once again, studies have shown that patents and innovation are not linked but are entirely independent. Companies, however, see plenty of benefit in using patents in a protectionist manner to stamp out competition. Furthermore, the system is rigged these days such that companies that want to compete need a large patent portfolio not because it helps with innovation, but because it helps ward off some lawsuits from others to avoid a patent nuclear war with both sides suing each other.
Michel lovingly points to IBM's continual dominance in the patent numbers, but ignores the many stories of IBM's famed patent bullying, such as the bullying it did against Sun many years ago:
"OK, maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk [IBM headquarters in New York] and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?"To argue that because large companies get patents, the patent system is working is just silly and unsupportable. Those companies don't "rely" on patents. They get them, because that's how the system works.
Yet, with many corporations and banks flush with cash reserves and pension and private equity funds seeking places to invest, now should be the era of increased investment in innovation, the country’s best hope for creating new wealth and new jobs. Instead, such investments lag. What, then, is needed to produce the needed private investment? Adequate incentives, for such investments are inherently risky. Slack consumer demand in a continuing recession is part of the problem, but so is the inadequate strength of patents. Obtaining and enforcing them remains far too slow, costly and cumbersome. Still worse, the uncertain scope of patents and the unpredictability of infringement and remedies outcomes inhibit business leaders who need certainty and predictability.And this is the really nefarious part in Michel's argument. This isn't just an argument in favor of the patent system, it's an argument in favor of trolling operations. Trolls repeatedly try to defend their indefensible efforts by arguing that they're "investing" in innovation by paying for such "risk." Anyone who's experienced any run-in with patent trolls knows this argument is complete hogwash. Trolls do it because it's a system that allows them to legally shakedown real innovators for money, because it gives them a giant weapon where the cost to pay off the troll is almost always less than the cost to defend (and win) a case in court.
Most informed persons believe, correctly, that innovation holds the key to future prosperity. What we need is a stronger, faster, fairer patent system with quality patents and predictable protections. The issue is whether companies can look beyond short-term earnings and stock prices to also focus on the company’s long-term health and on the needs of the American economy, American communities and American workers.Yes, we agree that innovation holds the key to future prosperity. The problem is that there is no evidence that the patent system actually increases that innovation, and a ridiculous amount of evidence that it does exactly the opposite. It retards innovation, diverting money from actual innovations that hit the market, to lawyers. The costs associated with the patent system far outweigh any benefits. Could you craft a functioning patent system? Perhaps, but today's system is not it, and if Judge Michel ever spent time with actual innovators who were the victims of patent trolling, he might learn something. But, you know, that would offend his patent lawyer and patent troll buddies.
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
Filed Under: cafc, innovation, patents, paul michel
Reader Comments
Subscribe: RSS
View by: Time | Thread
IBM
I think that IBM is a perfect example of how patents are bad for innovation and the economy.
Over the past 20 years, IBM has been shedding jobs - and outsourcing the ones they have left. They have closed or sold off entire divisions. Their former manufacturing plants are empty and unused. Their offices are ghost towns and sit empty on the commercial real estate market.
IBM used to be a world leader in making new technology. Now the best they can do is try to support stuff that other people make with minimum wage contractors and outsourced call centers.
(Full disclosure - I worked for IBM for a few years and saw my own group (even though we were profitable) reduced and transferred to lower qualified people who offered lower quality service to the customer (who became fed up with it and in-sourced some former members of the team directly to come work for them). I'm not bitter - working there gave me valuable contacts that got me into the better positions that I have now. But to hold IBM up as some shining example shows how tragically out-of-touch with the real world that judge is.)
[ link to this | view in chronology ]
Re: IBM
[ link to this | view in chronology ]
Re: IBM
[ link to this | view in chronology ]
We gotta protect our phoney-baloney jobs!
The only constant in IP is that the lawyers get rich. Like the Ring of Mordor, sometimes IP is used for good things, but it always does very bad things to the wielder.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Big Business and Patents
Without some force to get people driving in the same direction, it really has proven difficult in times past to get people to cooperate. The driving force that OUGHT to get people working together is common interest, but in many instances common interest can be hard to find. And, even when you find it, common ground as to how to go about doing a thing then becomes a tacky problem.
Central banking, early in this nation's history, was put forward by the likes of Alexander Hamilton as a stabilizing force for the nation. Central banks have been shut down and reintroduced some 3 or 4 times in our nations history, and while I and others dislike them, it is difficult to argue that without them, a great deal of chaos ensues.
Blaming the chaos on the usual suspects (huge trusts, conglomerated interests of wealth seakers, etc) really does nothing to solve the problem. Chaos is chaos.
Patents, for all their faults, lend themselves to the business models that work well under a central banking system.
It's true, in my opinion, that patents tend to postdate innovation, but that is beside the point. You can't get the innovations into the market without cash, and you can't get cash in large quantities under a central banking scheme without institutional loans. That's WHY the patents postdate the innovations. Because they need them in order to convince banks to lend. Banks don't like to gamble with their loans. They like as close to a sure thing as one can get, and patents help corporations reassure banks that they have a sure thing.
Until copyleft can come up with competitive models that still allow them to use central banking, or until they ally themselves with folks such as myself who are against central banking and come up with ways to function without a central bank, patents in particular are going to be a knotty problem to unravel in the IP world.
That's my take on it anyhow.
[ link to this | view in chronology ]
Re: Big Business and Patents
They have a constant "sure thing."
They seize assets or get a bailout.
[ link to this | view in chronology ]
I see real reasons to make a change and reduce/eliminate copyright to make the US (for example.) an innovation leader again. Lets all face it and admit as long as some widget is locked up by copyright, new innovators are very unlikely to use that widget to invent new bigger widgets. While many pro copyright advocates say that innovators need to invent their own widget, the reality is that most of our existing tech is based on existing tech. As long as the requirement stands to re-invent the wheel every time a wheel is needed, innovation will die a slow death.
As I stated before, unless some politician wants to commit political suicide and push to make changes to copyright, I am afraid that most of the worlds innovation will come to a halt.
And while I used tech as my example, you can throw in most of our arts too.
[ link to this | view in chronology ]
Couple things.
I could be educated more on that topic.
But as to your main point, I do believe that IP laws in general are there to promote centralization, which is why I think they relate to the central banking issue more directly than I hear most folks discussing. They are peas in a pod.
[ link to this | view in chronology ]
Re: Couple things.
At least that's the theory for a sensible patent system. The problem with the US patent system is that at times it allows patenting ideas such as propelling a ship by using rotary motion to move water, which could be interpreted to covet paddle wheels, screw propellers, and a rotary pump driving a water jet.
[ link to this | view in chronology ]
I agree with this bit
Depending on your definition of "stronger," I actually agree with Mr. Michel on this point. The patent system needs to be fairer with quality patents and predictable protections.
Unfortunately, I get the impression that he and I would rather strongly disagree with each other about what "fairer" looks like. And quality patents? That's a no-brainer. In the software space, anyway, patent quality is exceedingly low and getting lower. Again unfortunately, every proposal I've seen, and the AIA, will make this situation even worse.
I am not anti-patent in concept. Patents can be something that is an overall societal good. The way the US does patents is so fundamentally broken, though, that it would be better to have no patent system at all rather than what we have right now. Strengthening that system would only increase the harm and, in the end, would devastate innovation in the US.
[ link to this | view in chronology ]
And when was the last time IBM released an innovative product?! Seriously. How could he seriously use IBM as an example of a company that innovates?!
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
This is the most ridiculous spew of drivel I have ever read. And from a "judge", no less!
If you were a real "judge", you wouldn't even have thought this was a remote reality, in the face of overwhelming evidence to the contrary. Then again, you've proven you're nothing but an industry shill, employed by the highest bidder (in this case, IBM), and selling your "decisions" to those who pay."
It's people like you who have corrupted and destroyed the legal AND the patent system; hell, your ilk have destroyed the entire economy!
It's time we the people took back our nation and our government; and put crooks like you and your ilk behind bars.
[ link to this | view in chronology ]
You Make Me Smile
There's something in the air. I don't know if it's a legitimate revolution or the imminent demise of civilization as we know it, but there's definitely something in the air.
[ link to this | view in chronology ]
Re: You Make Me Smile
So: kangaroo platform, there so those who speak the party line only have a voice. GG, "IBeenMisled".
[ link to this | view in chronology ]
[ link to this | view in chronology ]
The idea is only the top X innovations would protected by patents. Then allow the protection to be traded, creating a market for that protection.
I think this would stop trolling as it would make acquiring protection for something that isn't being used too expensive. It might also stop the issues we have with scaling in that people would be able to actually review view all valid patents. Finally assuming that X was a reasonably small number, it should stop the patent bullying (as described by IBM) because no-one would be able to hold so many patents.
I think a renewal fee that starts small and grows exponentially is also a good idea, as it will encourage patent holders drop even massively profitable monopolies as the exponential growth of costs kick in.
I hope this would encourage a innovation, as it attempts to allow for the protection that maximalists insist is required for innovation, but at the same time encourages as turnover, and release into the public domain. With the exponentially growing renewal fee stopping the eternal patent from existing.
So there is my 2c on how to fix the system.. what do you guys think: Would it work, can it be improved upon?
[ link to this | view in chronology ]
Re:
If demand gets big enough, I can just remove protection from client X and rent it to client Y for renewal fees +500%. I just need to carefully word my contracts.
I will rule the world.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
For what it's worth, here are a few suggestions of my own, for the things I see as the most problematic areas:
5. Require usable documentation.
6. Require utilization.
7. Patent Office licensing.
The actual usage of the patent should be described in such detail that others can reproduce the result. The scope of the patent is in how it is actually utilized and all other uses are non-infringing, and may be patented separately by the one using it in that way. Therefore non-practicing entities cannot hold patents.
Licensing terms (including cost) and conditions should be determined by the patent office and not the patent holder, so that anyone can reasonably make use of the patent. This should include provisions for non-commercial usage, including open source, educational and scientific, or similar usage.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
The Patent System is just another religion
I'm going to make three statements below. Please list the substantial differences between them.
1: Patents are good, because....innovation!
2: Copyright is good, because....creativity!
3: God exists, because....morality!
[ link to this | view in chronology ]
One thing that I came away with was that Edison was a colossal asshole, and seemed to be the object of a lot of scorn for his business operations, claims to what he did, and I can't help but wonder if it was also not a mirror or precursor to the current mess, just with fewer players.
Also if you want to follow up another area, which is documented online, read up on the subject of well torpedos, used for stimulating production from oil wells in the same time period. It was not only heavily overshadowed by patent lawsuits, but with people making nitroglycerin in their own homes (like current meth operations) and doing the business on a freelance basis.
difference with the torpedo business was the independent operators frequently took out city blocks with their "oopses" as did the legit ones.
[ link to this | view in chronology ]
Totally agree with that.
Stronger, because it is hard to argue against the patent, this comes with only patenting that which is truly worthy of a patent and undoubtedly promotes the progress of science and technology for the benefit of everyone else.
Faster, because there are so few patents being given. Patents are reserved for the truly worthy discoveries. Patent worthy discoveries should be RARE. If they are not, then patents are not a necessary force(incentive) to promote progress.
Fairer, because it provides ONLY the inventors and authors the exclusive rights. This means it would be non-transferable, and non-human entities can not invent and discover and therefore can not hold a patent. It's IS fair, because the incentive is to have the inventor who came up with the extrodinary discovery that is worth recieving a patent to keep inventing which is what makes the progress.
With those goals in mind, the patent system would achieve predictable protections because the quality of patents is so high, that there is little way to argue against their worth and use.
So get to changing it now. Because that's not the US patent system right now.
[ link to this | view in chronology ]
Tech Dirt Display Ignorance of Patent System
1) The Industrial Revolution did not occur until there were property rights for inventors - It occurred where there were property rights for inventors, not in countries that allowed unlimited copying. Tech Dirt is so biased it can't see what is obvious on its face.
2) Reforms: While I don't agree with Judge Micheal, Tech Dirt rolls out its usual non-sense about trolls. The Patent System was designed so that you could have a division of labor between inventors and manufacturers. Tech Dirt shows a surprising ignorance of economics in it is complaint about this division of labor. It also perpetuates the bad patent argument - which is always repeated by people who do not understand how the patent system works, can't read claims, make outrageous comments about what patents cover and are inherently opposed to patents under any circumstances.
3) Tech Dirt set up a straw man argument that companies should get patents to promote innovation. People get patents because they want to protect their investment in creating and marketing new technologies. They do not want thieves to be able to free load off of their hard work. They are not getting patents to promote innovation any more than Tech Dirt exists to promote the first amendment or the useful arts.
4) Tech Dirt does not understand Property Rights: The crux of Tech Dirt’s argument against patents is that they are against property rights. Patents are property rights. Whenever property rights are instituted you see an increase output, when modern patent systems were instituted there was an explosion in innovation called the Industrial Revolution. Those countries with weak or non-existent patent systems live on the edge of starvation and have no innovation (see North Korea, much of the Middle East and Africa).
TECH DIRT’s position inconsistent with the facts, history, reason and logic.
[ link to this | view in chronology ]
Re: Tech Dirt Display Ignorance of Patent System
Lookie here, Judge Patent Troll, making a dupe to post your lame-assed tripe isn't good form; then again, your idea of "good form" is whatever puts money into your pocket, no matter the source. I guess that makes you "judge whore" instead.
[ link to this | view in chronology ]
Re: Tech Dirt Display Ignorance of Patent System
I can't speak to the occurance of the Industrial Revolution as it pertains to patents, but what we have seen repeatedly is, again, the patents follow the innovations and not the other way around. Since the world was already ensconced in partial reserve banking practices by the time of the industrial revolution, it is unsurprising that patents follow innovation and only then is that innovation able to spread to the masses. Under our current monetary system, nothing can get done without the banks financing it.
This is the reason why patents are necessary. People can monetize innovation without any problem, but a bank cannot. The bank needs there to be some reason why people come to its borrowers for services.
[ link to this | view in chronology ]
Re: Tech Dirt Display Ignorance of Patent System
The Industrial Revolution was not because of patents. The Industrial Revolution as a whole can be summed up in one word: Coal. The exploding use of coal as a fuel instead of wood and other fuels (peat, even dung).
Why did coal use explode around 1700? Sure, an invention. Thomas Savery's steam powered water pump, invented in 1698. Later, the Newcomen steam engine, 1712, was used to pump water. (Why were water pumps important? Coal is underground. You dig a hole to get it out, and those holes fill with water, surprising quickly.)
Savery's pump was patented, I'll admit. It was also a direct copy of an invention by Edward Somerset from 1662. Guess that was one of the first bogus patents. Now, lets imagine for a second if Savery had sued to stop Newcomen from making the steam engine, because it used the same process. Perhaps the last 300 years would have been very, very different.
As to why did the Industrial Revolution happen in the UK? Well, obvious - that's where the coal was very plentiful, and easy to get to, assuming you had a water pump.
[ link to this | view in chronology ]
Re: Tech Dirt Display Ignorance of Patent System
Maybe you should compare to the the BRIC countries, which the fastest growing markets right now and see if they really have stronger patent legislation.
2) Where does trolls fit in this? They are neither inventors, nor manufacturers.
3) I agree, "People get patents because they want to protect their investment". This is contradictory to (1), where you hold that patent lead to more innovation, rather than simply protecting what has been.
4) Patents are nothing like property rights. You cannot have any property rights over my property, even if I copied yours. That is what copyright or patents are for. You might argue that it is an extension of property rights, but then you should really look it up in the history books and see where all those rights originate from. I think that will prove most enlightening.
[ link to this | view in chronology ]
Patent/copyright is a monopoly maker, nothing more
[ link to this | view in chronology ]
lies and damned lies
You are talking about yourself -not Michel. That is what you have always done. But then you only argue from the perspective of invention thieves, not inventors. Patents do not block innovation, but the theft of. Now more than ever small entities need strong property rights including the ability to exclude others from using our inventions without permission. Without them we cannot get funded and commercialize. Without us China and other low wage foreign nations will keep steam rolling America. Considering we create the lions share of new jobs here at home, America cannot afford to undermine us.
Please see http://truereform.piausa.org/ for a credible view on patent reform.
http://docs.piausa.org/
[ link to this | view in chronology ]
Re: lies and damned lies
"Patents..block the theft of": yeah, they give you a great source of revenue: extortion by lawyer, where you extract free cash from ignorant rubes to fatten your bottom line.
"Without us (:wtf:).. China and other low wage...nations...keep steam rolling America": Hell, y'all send all your work to them because we stupid Americans are too damn "expensive" for you to use--profit über alles, right??
"Considering we create the lions [sic] share of new jobs...:": Utter bullshit: you send them all overseas, except for the lawyers you use to extort cash from your victims. There are very few decent jobs around now, and you haven't created diddly-squat, except more cash in your back pocket.
If anything, you're the damned liar; and all you want is protectionism for your monopoly.
[ link to this | view in chronology ]
waterjet cutting
[ link to this | view in chronology ]
waterjet cutting
[ link to this | view in chronology ]
Re: waterjet cutting
[ link to this | view in chronology ]
Re: Re: waterjet cutting
[ link to this | view in chronology ]
Re: Re: Re: waterjet cutting
Thanks for the demo!
[ link to this | view in chronology ]
waterjet cutting
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]