Intellectual Property

This week in the Tech Policy Weekly podcast with Jerry Brito, Adam Thierer, Tim Lee and special guest Mike Masnick, I discuss the patent reform proposal introduced last week in the Senate and House, which I’ve described here and in previous posts. The utility, novelty and non-obviousness requirements haven’t been consistently applied, particularly in the software and business methods areas, nor the rule against vagueness. These concepts all need to be resurrected. Unfortunately, patent quality usually comes down to a plea for more funding for the PTO, which would allow the PTO merely to subsidize its preexisting weaknesses. On the positive side, the proposal permits third parties to submit relevant prior art references to the Patent Office and it modifies Read More ›

Fine-tuning patent law (as I have argued here and here) is a task the Supreme Court is best suited to handle, and the Leahy-Hatch / Berman-Smith Patent Reform Act of 2007, introduced yesterday in the Senate and House, thankfully is silent on some of the more contentious patent reform issues. According to Rep. Howard Berman (D-CA), There are a number of issues which we have chosen not to include in the bill primarily because we hope they will be addressed without the need for legislation. For instance the Supreme Court recently resolved questions regarding injunctive relief. In that category we include amendments to Section 271(f) and the obviousness standard as both issues are currently before the Supreme Court. If either Read More ›

European Union regulators think Apple should charge the same price across Europe for users to download content from iTunes. As it now stands, consumers in countries like Great Britain and Denmark pay a few cents more than their neighbors to download songs. Apple has been served with a Statement of Objections (basically an indictment). According to an EU press release, The Statement of Objections alleges that distribution agreements between Apple and major record companies contain territorial sales restrictions which violate Article 81 of the EC Treaty. iTunes verifies consumers’ country of residence through their credit card details. For example, in order to buy a music download from the iTunes’ Belgian on-line store a consumer must use a credit card issued Read More ›

This week in the Tech Policy Weekly podcast, Jerry Brito, Drew Clark, Tim Lee and I discuss patent reform, FreeConference’s antitrust suit against AT&T and e-voting. On patent reform, I observed that the momentum for fundamental reform reminds me in some ways of the eagerness for telecom reform in the mid 1990s. The Telecommunications Act of 1996 created many problems, demonstrating the inevitability of unintended consequences. Meanwhile, the Supreme Court has stepped up to the plate and has a chance to recalibrate the patent system without major reform. I’d like to see what the Supreme Court does, and hope Congress takes it’s time. A long time. I’m not sure what to make of FreeConference v. AT&T. As Tim Lee points Read More ›

Irwin Mark Jacobs The patent system “has overall worked very well in encouraging innovation and, particularly in our case, in allowing us to grow to a significant company,” remarked Qualcomm co-founder Irwin Mark Jacobs at the Heritage Foundation last week. To many, the patent system works too well. Our present system awarded a patent for a garbage bag that looks like a pumpkin, for example. Someone else patented a method for swinging on a swing. Jacobs acknowledges patent quality is critical and wants Congress to allow the Patent & Trademark Office to retain all of its user fees, but warns that other reforms could have unintended consequences. Besides ending the diversion of some $90 million in PTO fees to fund Read More ›

The essence of the opposing views on patent reform is well-summarized as follows by James DeLong in an excellent paper on the subject available at the Progress & Freedom Foundation: Reading one side, one learns that inventors are mostly sneaking trolls hiding under bridges to ambush honest enterprises as soon as they commit to producing a product. Read the other, and you are convinced that all corporate hierarchs are uncreative hacks lying in wait to steal the fruits of the honest inventors’ toil. Some of the proposals for patent reform are too radical, according to DeLong: [n]o distinction between the rights of integrated firms and those of invention shops is viable … factors [] such as whether the patentee lay Read More ›

More good sense (sub. req.) on intellectual property from Profs. Adam Jaffe and Josh Lerner. They offer more examples of frivilous patents… “such absurdities as patents on wristwatches (paw-watches?) for dogs, a method of swinging on a swing (“invented” by a five-year-old), peanut butter and jelly sandwiches…[and]…broad ideas related to mobile email — virtually devoid of any details of implementation — that have imposed a $612 million tax on the maker and users of BlackBerries.” …Then Jaffe and Lerner offer simple, structural solutions to correct most of the system’s worse offenses: “(1) changing the USPTO review process so that the determination of whether a patent application is really new is made with as much information as practical about what related Read More ›

Must read hilarity from novelist-turned-policy-wonk Michael Crichton on our increasingly absurd patent laws. Highlighting an upcoming Supreme Court case which questions a company’s ability to patent a basic scientific fact — in this case, that “[e]levated homocysteine is linked to B-12 deficiency” — Crichton launches a broadside against the increasing patentability of universal facts of nature, entirely obvious techniques or concepts, and abstract “strategies” used throughout the business world. “Companies have patented their method of hiring, and real estate agents have patented the way they sell houses. Lawyers now advise athletes to patent their sports moves, and screenwriters to patent their movie plots. (My screenplay for “Jurassic Park” was cited as a good candidate.)” Real software and high-technology innovators and Read More ›

Patent applicants have contributed over $750 million to government programs that have nothing to do with processing patent applications. “It’s a tax on innovation,” observes Rep. Zoe Lofgren (D-CA). She’s right.

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