HBR on the Wrong Patent Reform

Patent Reform

The Harvard Business Review has a curious article this week by Paul R. Michel: Big Tech Has a Patent Violation Problem. The thrust of it is that we should not reform patent law to make it easier to invalidate patents because:

"If they succeed in weakening America’s intellectual property system, it could be devastating for thousands of small, innovative startups — with disastrous consequences for the economy as a whole."

Sounds bad, and attacking big tech is a great way to make you look like a populist. But as a small, innovative startup founder and worker I know that this is exactly the wrong way round. Google etc can easily afford to fend off patent litigation and deal with the consequences when a lawsuit occasionally breaks the wrong way. A fine after all is just a price. It's the startups that can't afford to fight off an infringement lawsuit, or pay to file a patent for every other line of code on the off chance that it could become a weapon one day.

So who is Paul R. Michel? HBR says:

"Paul R. Michel (Ret.) served on the United States Court of Appeals for the Federal Circuit from 1988 to his retirement in 2010, and as its chief judge from 2004 to 2010."

But fails to disclose that he's currently listed as a member of the Intellectual Property Owners Education Foundation and:

"Judge Michel also consults for law firms and their clients in intellectual property litigations, conducting moot courts, mock trials, case evaluations, editing briefs, advising on strategy and providing mediation and arbitration services."

Which doesn't mean that he shouldn't express his opinion in HBR but does color that opinion a little in my view. If nothing else the current system is an all you can eat buffet for IP lawyers.

HBR: please feel free to run this as a counter-argument, the best way to fix the patent system is to stop examining them altogether as I proposed nearly twelve years ago.

(Related: How to fix software patents; Carr is Wrong: Costolo is Wrong: Wikipedia’s SOPA Blackout is a Great Idea; You won't believe this one crazy trick that would fix the broken patent system)

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Links for April 2022

Prior Artist

Updated on Sunday, October 23, 2022

You won't believe this one crazy trick that would fix the broken patent system

Updated on Thursday, November 12, 2015

You won't believe this one crazy trick that would fix the broken patent system

On Thursday The White House announced a trio of executive actions to fight patent trolls, most interestingly:

"Crowdsourcing Prior Art — To help ensure that U.S. patents are of the highest quality, the USPTO is announcing a new initiative focused on expanding ways for companies, experts, and the general public to help patent examiners, holders, and applicants find relevant “prior art”—that is, the technical information patent examiners need to make a determination of whether an invention is truly novel."

I've considered this for a few years as a for-profit business, paying a bounty to anyone who contributes prior art that helps take out a troll. But I have a way better idea: stop examining patents altogether.

(previously, previously, previously, previously, previously, previously, previously, previously, previously)

(Related: How to fix software patents; HBR on the Wrong Patent Reform; Licensing Fail: WinZip vs. ScanToPDF)

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BBC On Patents

Updated on Thursday, November 12, 2015

Patently Absurd

"The patent system in the USA is so distorted it's now more lucrative for companies known as 'patent trolls' to sue manufacturers rather than actually make anything. The problem's so serious that President Obama has got involved -- and British companies are targeted if they do business in the US. Rory Cellan-Jones investigates and finds one of the world's biggest trolls in his lair in Dallas."

Patently Absurd is available to stream for the next six days (the BBC never took me up on the offer for a new hard drive).

(Related: How to fix software patents; HBR on the Wrong Patent Reform; More on breaking the Internet)

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Die, Software Patents, Die

Updated on Sunday, October 23, 2022

This week in defeating Patent Trolls

Updated on Sunday, October 23, 2022

Bringing a SHIELD to a conker fight

Updated on Thursday, November 12, 2015

Bringing a SHIELD to a conker fight

I've supported the SHIELD Act before, which would force patent trolls to pay legal bills for unsuccessful shakedown attempts, but a TechCrunch article today made me think this through some more. 

SHIELD would be a serious deterrent for trolls who have their eye on large companies with the means to defend themselves. But trolls eat startups first and a startup is often unable to fight through the courts and get to the point where SHIELD would help. If the troll is after something like $1,000 from every company using a scanner then not many businesses are going to risk going to court. And if the troll isn't interested in any reasonable settlement then the legal fees and management distraction can kill you

SHIELD is well intentioned and would certainly help. But we need to stop examining patents before issuing them and do the job properly for the few that ever get used in anger. 

(Related: How to fix software patents; HBR on the Wrong Patent Reform; More on breaking the Internet)

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Support SHIELD–a small measure of patent sanity

Updated on Thursday, November 12, 2015

A friend pointed me at the SHIELD (PDF) act today. This bill would make unsuccessful patent trolls pay defendants’ legal bills. It’s not as good as my radical plan to fix patents, but it’s a step in the right direction. If you care, let your congressperson know. Here’s the note I just sent to mine:

Dear Rep. Pelosi,

I'm writing to let you know that I support the SHIELD act Introduced by Rep. Peter DeFazio (D-OR) and co-sponsored by Rep. Jason Chaffetz (R-UT). As an entrepreneur and professional software developer I have personally experienced the job destroying effects of ill founded patent litigation. Any step to reduce this drag on our industry is a welcome step.

Regards,

Rob Ellison
San Francisco 

(Related: HBR on the Wrong Patent Reform; How to fix software patents; California November 2020 Propositions)

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Reviews and Links for July 2012

Updated on Friday, February 24, 2017

The Sense of an Ending by Julian Barnes

4/5

A personal anti-adventure, gripping and poignant and pedestrian.

 

The Children of the Sky (Zones of Thought, #3) by Vernor Vinge

0/5

Solid, unexpected third installment. Don't read if you haven't read the first two.

 

Links

'robot revolution would end quickly, because the robots would all break down or get stuck against walls' - http://t.co/X4AFepMI

RT @GeoCollective: Daniel @RavenEllison speaking at National Geographic on the importance of #geography and #guerrillageography http://t ...

Aspam, Aomori, Japan - looks like Blade Runner. http://t.co/UePboKyJ

Cloud Atlas trailer http://t.co/etJealdX (on the plus side, lots of reasons for this to be great, on the minus side... Tom Hanks :( ) #fb

[text: “what the fuck, it worked the first time”,... http://t.co/chCeMv8M

Chow Down (at Chick-fil-A): http://t.co/cOuZViuC via @youtube

4 of 5 stars to The Sense of an Ending by Julian Barnes http://t.co/lV8ZrNHL

I side 90% with Jill Stein... http://t.co/zCNzugqD

Naples, Florida, USA snapshot from Catfood WebCams on Android. http://t.co/HACOmEhr

Testing a webcam share from Android... http://t.co/Ha94fZoW

Photo http://t.co/GnDGvPPZ

Rolling up social APIs: https://t.co/qrXnqX7T #todo @myEN

Thanks for the Cash Mr. Bubble Man: http://t.co/ZonD58yD

With More Original Programming On The Way, Netflix TV Viewing Is On The Rise http://t.co/Q8oCNZUv -- missing the point, lack of content

Hubble discovers new Pluto moon http://t.co/kRB95fLu -- Promote Pluto back to a planet immediately!

Amanda Palmer's awesome stop-motion music video [NSFW]: http://t.co/XfGBC9NY

ITHCWY: Hummingbird http://t.co/CHtA5fV3

Clegg: House of Lords is 'flawed' http://t.co/qp6MuKPO -- yes, do this: http://t.co/QNPyzu8X

ITHCWY: Twitter's API has got too painful for me: I've developed a bunch of stupid, niche and vaguely promising… http://t.co/J6Y0EZ62

IT class warfare — It’s not just IBM http://t.co/bK0Nr2lG

Naming Pets http://t.co/syC0kgWa

BBC News - Brian Cox: bank bailout costlier than UK science 'since Jesus' http://t.co/1RSN5g5Z -- amaaaaazzzziiiinnnnngg

"A conversation with my 12 year old self" (video) http://t.co/zYOEKDnN -- freaky

ITHCWY: Shrubbery: A missed opportunity to demand that violators shall provide... another shrubbery! (At the Old… http://t.co/lBSQaDmI

Probably the Higgs: http://t.co/yspWoQlv

Spring cleaning in summer http://t.co/269vRG1O - Google kills iGoogle. It was naff, but it drove a lot of @CatfoodSoftware business. Sad.

Cisco's cloud vision: Mandatory, monetized, and killed at their discretion http://t.co/OkBkKAsA via @extremetech @CiscoSystems

A better idea for House of Lords reform: http://t.co/WXhNgHF4 Agree? vote for http://t.co/svIg4nuG #lordsreform

ITHCWY: House of Lords - time for Legislative Service?: I've mulled the idea of having an upper chamber randomly… http://t.co/6C5cQjz2

You Might Be A Smanker If… http://t.co/L91rDvqV

Cisco locks customers out of their own routers, only lets them back in if they agree to being spied upon and monetized http://t.co/2QIdw42P

Bouncy, bouncy druids, not available outside the UK: http://t.co/mw7XcKth

Division http://t.co/2tIh8IXM via @RavenEllison

Patent troll http://t.co/AY3FIg8W

Operated by the knights who say NI! http://t.co/TkMndo7c

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