The Time article How America Risks Losing Its Innovation highlights how the Federal government and military have played an important role in funding (i.e., long-term venture capital) technological innovation such as the Internet. Not exactly a new insight, but a well written article with some new stuff and high definition photos of American history.
Copyright © 2019 Robert Moll. All rights reserved.
Showing posts with label innovation. Show all posts
Showing posts with label innovation. Show all posts
Thursday, January 10, 2019
Wednesday, April 11, 2018
USPTO - Director of USPTO Andrei Iancu - Role of U.S. Patent Policy in Domestic Innovation and Potential Impacts on Investment
On April 11, 2018, Director of USPTO Andrei Iancu delivered an encouraging and insightful speech:
"Thank you Neil (Bradley) for that generous introduction. Thank you also to the U.S. Chamber of Commerce and its Global Innovation Policy Center for hosting this impressive gathering and inviting me to speak here today.
Dr. Eli Harari, an electrical engineer, always tinkered and invented things. He tells, for example, that he invented a new type of fishing rod, although he never fished. “Imagine how much more successful you’d be,” his wife said, “if you’d invent in a field you knew something about.” And so he did. Dr. Harari is credited with inventing the Electrically Erasable Programmable Read-Only Memory, also known as EEPROM, or “E-squared PROM.” This was in the 1970s, when Harari was working at a major corporation, where he was a star.
But a few years later, he wanted to be on his own, to invent, to perfect, to commercialize. In his late 30s, he was also married and had a child. So in the prime of his career, with a family at home, Harari left his comfortable life with major corporations. Seeding it in part with his own money, Harari started a company of his own. And he did not even draw a salary the first several months. He risked everything: his career, his finances, and his family.
That first company actually did not work out well, but a few years later, Harari risked it all again and co-founded a new company, which he ultimately called SanDisk. At SanDisk, Harari built upon his EEPROM technology, added critically important new inventions, and perfected flash memory data storage. And he obtained patents, including on how to turn memory chips into reliable systems. Harari’s flash technology came to be used almost universally in devices like digital cameras and cell phones. In 2016, Western Digital acquired SanDisk for $19 billion.
But think about it: Without patents, how could someone like Dr. Harari risk everything, put aside his secure career at an established company, and strike it on his own? As Dr. Harari told me: “The only asset you have is your idea. If you have no way to protect your idea, you are at the mercy of the next bad guy. The U.S. patent system is genius, really the bedrock foundation of capitalism.”
Harari’s sentiment was echoed by President Ronald Reagan, who said in 1982: “Throughout our Nation’s history, the patent system has played a critically important role in stimulating technological advances.” How true that is.
Yet today, our patent system is at a crossroads. For more than just a few years, our system has been pushed and pulled, poked and prodded. The cumulative result is a system in which the patent grant is less reliable today than it should be. This onslaught has come from all directions: There has been major reform legislation, and proposed legislation. There have been massive changes brought about by major court cases. And the USPTO itself has taken a variety of actions in an effort to implement these changes. Plus, importantly, the rhetoric surrounding the patent system has focused relentlessly on certain faults in, or abuses of, the system—instead of the incredible benefits the system brings to our nation.
We see the result of this years-long onslaught in your own study, the U.S. Chamber’s 6th Annual International IP Index. I don’t need to tell this audience that the American patent system, which in prior years was deservedly ranked as the number one system in the world, in 2017 fell to number 10. And this year it fell further, tied for number 12. But make no mistake: we are still an elite system, a mere ¼ point away from the systems ranked 2-11. And the United States remains the leader for overall IP rights.
Still, we are at an inflection point with respect to the patent system. As a nation, we cannot continue down the same path if we want to maintain our global economic leadership. And we will not continue down the same path. This administration has a mission to create sustained economic growth, and innovation and IP protection are key goals in support of that mission. So, how do we reverse the trend? The good news is that reclaiming our patent leadership status is within reach. For today, let me focus on two principal points: (1) Creating a new pro-innovation, pro-IP dialogue, and (2) Increasing the reliability of the patent grant. First, we must change the dialogue surrounding patents. Words have meaning. Words impact perception and drive public policy. And for too long, the words surrounding our patent system have been overly-focused on its faults. A successful system cannot be defined by its faults. Rather, a successful system must be defined by its goals, aspirations, and successes. Obviously, errors in the system should be corrected. And no abuse should be tolerated. Errors and abuse should be identified and swiftly eliminated. However, the focus for discussion, and the focus for IP policy, must be on the positive.
We must create a new narrative that defines the patent system by the brilliance of inventors, the excitement of invention, and the incredible benefits they bring to society. And it is these benefits that must drive our patent policies. At my swearing-in, I remarked that through the doors of the U.S. Patent and Trademark Office comes our future. And indeed it does, and it always did. We must celebrate that. From Thomas Edison to the Wright Brothers, from Stanley Cohen and Herbert Boyer to Steve Jobs, American inventors have fueled the imagination of our people for generations. We are a pioneering people, who overcome large obstacles in order to realize our dreams and create prosperity. Inventors help make dreams reality. And American invention changes the world. Indeed, with American patents, humans made light, began to fly, treated disease, and enabled instant communications across the globe from tiny devices in our pockets. And those patents also enabled these inventors to start companies and grow our economy. Our dialogue and policies need to be focused on these amazing achievements, and how we can encourage more of them. Take Walter Hawkins as another example: Hawkins, who in 1942 became the first African American scientist on staff at AT&T’s Bell Labs, developed the plastic coating that covers telephone wires, a more versatile, durable and eco-friendly alternative to the lead standard at the time. It was so durable, in fact, and so effective, that Hawkins’ invention enabled huge investments to bring affordable phone service across America, including rural areas, and to millions of people in the 20th Century. Inventor stories like Hawkins’ and Harari’s are those we need to tell. This is the American patent system. This is the dialogue we need to have. And this should be the focus of our patent policy. This is how we incentivize innovation and growth.
But, how exactly do we translate this into a better patent system? Here’s a start: when we write, interpret, and administer patent laws, we must consistently ask ourselves: Are we helping these inventors? Whether it’s an individual tinkering in her garage, or a team at a large corporation, or a laboratory on a university campus—we must ask ourselves: are we helping them? Are we incentivizing innovation? And that brings me to my second principal point for today: increasing the reliability of the patent grant. Because that is key to incentivizing innovation. Without reliable patents, inventors like Dr. Eli Harari are less likely to risk it all in order to bring their new concepts to the market. As I said at my Senate confirmation hearing: “When patent owners and the public have confidence in the patent grant, inventors are encouraged to invent, investments are made, companies grow, jobs are created, science and technology advance.”
This year’s Chamber report explains why our patent system has dropped to number 12: “innovators and creators face a challenging environment for protecting their IP under current U.S. law… U.S. patentability standards and patent opposition procedures continue to create uncertainty for rightsholders.” So your report identifies two principal reasons for the increased uncertainty (or lower reliability) of our patents: (1) Patentability Standards, or more specifically, patent subject matter eligibility pursuant to 35 USC Section 101; and (2) Opposition procedures, namely, the post-grant procedures, such as IPR, that were established by the America Invents Act.
Let me address each of these in turn. First, our current law surrounding patentable subject matter has created a more unpredictable patent landscape that is hurting innovation and, consequently, investment and job creation. Recent cases from the Supreme Court – Mayo, Myriad, and Alice – have inserted standards into our interpretation of the statute that are difficult to follow. Lower courts applying these cases are struggling to issue consistent results. Patent lawyers trying to advise their clients are, in turn, struggling to predict the outcome with respect to certain patents. And examiners at the USPTO must spend increased amounts of time addressing this challenging issue. The current standards are difficult for all: stakeholders, courts, examiners, practitioners, and investors alike. System-wide, a significant amount of time is being spent trying to figure out where the lines should be drawn, and what’s in and what’s out. And multiple people looking at the same patent claims often have trouble agreeing on, and predicting, the outcome.
Something must be done. To be sure, we must and will apply Supreme Court law faithfully. This does not mean, however, that more cannot be done to increase clarity and predictability. Of course, given our statutory mandate, there is only so much that the USPTO can do. But within that mandate, we will do everything we can. Currently, we’re actively looking for ways to simplify the eligibility determination for our examiners through forward-looking guidance. Through our administration of the patent laws, which we are charged to execute, the USPTO can lead, not just react to every new case the courts issue.
Second, your report also mentions our “patent opposition procedures” as a reason for the increased uncertainty of our patents. This refers primarily to our Inter Partes Review, or the IPR system. This was a creation of the America Invents Act, and since its introduction five and a half years ago, we have now conducted more than 8,000 such proceedings. It’s been a very popular proceeding. Opinions on this new system diverge widely. Yet each opinion is passionately held by its supporters. Pointing to the high invalidation rates in IPR proceedings, some hate the new system with vigor, arguing that it’s an unfair process that tilts too much in favor of the petitioner. Others love the system, and think it’s the best tool we have to correct errors, eliminate “bad patents,” and improve patent quality. Who is right? Well, both arguments have legitimate elements.
But I encourage people to reduce the hyperbole and look at the process with fresh eyes, in order to understand its true benefits and true challenges. This is what we are now doing at the USPTO. Indeed, it’s one of our highest priorities. We need to carefully balance rights-holder’s and rights challenger’s interests. On the one hand, for example, this proceeding can come years after issuance, when the patent owners and the public may both have relied on those rights and made investments accordingly. On the other hand, we do want to execute the statutory mandate and help maintain the quality of patent rights. And – assuming the Supreme Court does not declare it unconstitutional – we do want the IPR system to effectively address invalid claims, but at the same time, we don't want to throw out the baby with the bathwater. The filters need to be appropriately set. And so, among various other things, we are now examining: how and when we institute proceedings, the standards we employ during the proceedings, and how we conduct the overall proceedings.The goal, with whatever action we take, is to increase predictability of appropriately-scoped claims.
Finally on the predictability front, let me mention something that was not addressed directly in your report. If we want truly reliable rights, we must ensure that we issue appropriately-scoped patent claims from the get-go. In other words, we must also focus on the front end. And since our examiners are first in line, we must ensure that they have the tools they need for a thorough search and examination. Our examiners already do a fabulous job. And it is not easy, given the state of the law and all the information that needs to be processed and analyzed. To further improve the original examination, a next step would be to increase examiners’ ability to find the best prior art during examination. At times, there is a gap between the prior art found during initial examination and the prior art found during litigation. There are many reasons for this, but the main culprits are the ever-accelerating publication and accessibility explosions. These are issues that face every Patent Office around the world. Indeed, we are ahead of most others on this front. But if we could further narrow this gap in prior art between examination and litigation, then the accuracy of the patent grant – and therefore, its reliability – would increase. We are focusing on this as well, together with the other issues I’ve already mentioned.
Overall, addressing these various issues, especially as outlined in your report – from patentable subject matter to a carefully balanced post-grant process – we can return our patent system to a higher level of predictability and stability. Finding the right balance on these issues requires work, and a holistic, collaborative approach.
As Neil mentioned in his introduction, I come from the private sector. I’ve seen our patent system at work from all sides. And I have represented clients from various sectors, of different sizes, and in different postures. I understand that there are a variety of legitimate points of view. We must work together to achieve a careful balance that is most beneficial to the American economy as a whole. In the end, the hallmarks of a well-functioning patent system are the reliability and predictability of quality patents. This is critical for both patent holders and the public. And the benefits of a well-functioning patent system are indeed unmistakable. It enabled inventors like Eli Harari and Walter Hawkins, who exemplify the brilliance of American innovation, to make significant technological advances while also generating remarkable job creation and progress for our nation. Of his flash memory inventions, Dr. Harari told me, “We really changed the world.” And as to how his patents helped him start his company? He said, “With a patent at a minimum we were able to speak relatively freely under an NDA. And in a small start-up, you need partners who can help you accelerate your development and to invest in you.” “If you are not protected,” he said, “God help you!”
Let me leave you with this: During his first address to Congress in February of last year, President Trump noted that, on our 100th anniversary, in 1876, citizens from throughout the country came to Philadelphia to celebrate America’s centennial. At that celebration, the country’s inventors showed off their wonderful creations. Alexander Graham Bell presented his telephone for the first time. Remington revealed the first typewriter; and Thomas Edison showed an automatic telegraph and an electric pen. President Trump then asked all of us to imagine the wonders our country could know in America’s 250th year. He asked us to think about all the illnesses that could be cured, the distant worlds we could walk on, and the marvels we could achieve, if only we could set free the dreams of Americans. That’s how I think about intellectual property.
As I see it, no dream is too big if we unleash the power of innovation, and give our nation’s inventors the protections they need to succeed. That’s why it’s so important that we find the right balance in the IP system. This is something I’m very passionate about, and fully committed to, as I lead the U.S. Patent and Trademark Office. We have a remarkable patent system, born from our Constitution and steeped in our history. It is a crown jewel; a gold standard. We have a unique opportunity to ensure it meets its full Constitutional mandate to promote innovation and grow our economy. I look forward to working with all of you in support of that great endeavor. Thank you again for the invitation to participate in this important discussion."
I have only a few comments on Mr. Iancu's speech. His story about Dr. Harari is correct. I worked at WSGR on the SanDisk team that defeated Samsung in the ITC in 1996-1997. As I worked on that case, I came to respect both his brilliance and kindness and willingness to come from Israel, earn PhD in Physics from Princeton, work at Intel then leave all of that to start his own company. Dr. Harari really does believe in the US patent system. Check out how many SanDisk patents have issued and filing patents was the first order of business. You can ask Dr. Harari, but in my view that enforcement of SanDisk's patents was fundamental to its early success in the marketplace and many cell phones and digital cameras still use SanDisk patented technology today.
Because not many know about the SanDisk v. Samsung case, I should note SanDisk precipitated the patent dispute by having the audacity to ask the much larger Samsung to sign a patent license. Samsung would have none of that and filed a declaratory judgment action seeking to show the patents invalid in the district court. SanDisk aware of the expense of fighting it out in district court decided to file an ITC action to seek patent enforcement within 12-18 months. Fortunately, SanDisk won on both the patents which led Samsung and other large foreign competitors to sign patent licenses. Question whether with the unpredictable subject matter eligibility law, it would have had the same outcome.
Mr. Iancu mentions the negative view of patents being propagated in the press. For example, one myth I have heard is patents hinder innovation and startups. Keep in mind nearly everyone in the world acts in self interest -- and when a big tech companies (or related academic) tells you patents are harming the economy, or surprisingly that they harm innovation or startups ask yourself why is this academic/think tank or lobbyist telling me US patents are harming smaller competitors?
Thus, I appreciate Mr. Iancu's boldness cutting through the constant drum of misinformation and acknowledging we are at the cross roads with patents and startups need an improved reliable US patent system especially in terms of patent eligibility and IPR to succeed. I have seen patent success first hand, love this country and hate to see US patents harmed by misinformation.
Copyright © 2018 Robert Moll. All rights reserved.
"Thank you Neil (Bradley) for that generous introduction. Thank you also to the U.S. Chamber of Commerce and its Global Innovation Policy Center for hosting this impressive gathering and inviting me to speak here today.
Dr. Eli Harari, an electrical engineer, always tinkered and invented things. He tells, for example, that he invented a new type of fishing rod, although he never fished. “Imagine how much more successful you’d be,” his wife said, “if you’d invent in a field you knew something about.” And so he did. Dr. Harari is credited with inventing the Electrically Erasable Programmable Read-Only Memory, also known as EEPROM, or “E-squared PROM.” This was in the 1970s, when Harari was working at a major corporation, where he was a star.
But a few years later, he wanted to be on his own, to invent, to perfect, to commercialize. In his late 30s, he was also married and had a child. So in the prime of his career, with a family at home, Harari left his comfortable life with major corporations. Seeding it in part with his own money, Harari started a company of his own. And he did not even draw a salary the first several months. He risked everything: his career, his finances, and his family.
That first company actually did not work out well, but a few years later, Harari risked it all again and co-founded a new company, which he ultimately called SanDisk. At SanDisk, Harari built upon his EEPROM technology, added critically important new inventions, and perfected flash memory data storage. And he obtained patents, including on how to turn memory chips into reliable systems. Harari’s flash technology came to be used almost universally in devices like digital cameras and cell phones. In 2016, Western Digital acquired SanDisk for $19 billion.
But think about it: Without patents, how could someone like Dr. Harari risk everything, put aside his secure career at an established company, and strike it on his own? As Dr. Harari told me: “The only asset you have is your idea. If you have no way to protect your idea, you are at the mercy of the next bad guy. The U.S. patent system is genius, really the bedrock foundation of capitalism.”
Harari’s sentiment was echoed by President Ronald Reagan, who said in 1982: “Throughout our Nation’s history, the patent system has played a critically important role in stimulating technological advances.” How true that is.
Yet today, our patent system is at a crossroads. For more than just a few years, our system has been pushed and pulled, poked and prodded. The cumulative result is a system in which the patent grant is less reliable today than it should be. This onslaught has come from all directions: There has been major reform legislation, and proposed legislation. There have been massive changes brought about by major court cases. And the USPTO itself has taken a variety of actions in an effort to implement these changes. Plus, importantly, the rhetoric surrounding the patent system has focused relentlessly on certain faults in, or abuses of, the system—instead of the incredible benefits the system brings to our nation.
We see the result of this years-long onslaught in your own study, the U.S. Chamber’s 6th Annual International IP Index. I don’t need to tell this audience that the American patent system, which in prior years was deservedly ranked as the number one system in the world, in 2017 fell to number 10. And this year it fell further, tied for number 12. But make no mistake: we are still an elite system, a mere ¼ point away from the systems ranked 2-11. And the United States remains the leader for overall IP rights.
Still, we are at an inflection point with respect to the patent system. As a nation, we cannot continue down the same path if we want to maintain our global economic leadership. And we will not continue down the same path. This administration has a mission to create sustained economic growth, and innovation and IP protection are key goals in support of that mission. So, how do we reverse the trend? The good news is that reclaiming our patent leadership status is within reach. For today, let me focus on two principal points: (1) Creating a new pro-innovation, pro-IP dialogue, and (2) Increasing the reliability of the patent grant. First, we must change the dialogue surrounding patents. Words have meaning. Words impact perception and drive public policy. And for too long, the words surrounding our patent system have been overly-focused on its faults. A successful system cannot be defined by its faults. Rather, a successful system must be defined by its goals, aspirations, and successes. Obviously, errors in the system should be corrected. And no abuse should be tolerated. Errors and abuse should be identified and swiftly eliminated. However, the focus for discussion, and the focus for IP policy, must be on the positive.
We must create a new narrative that defines the patent system by the brilliance of inventors, the excitement of invention, and the incredible benefits they bring to society. And it is these benefits that must drive our patent policies. At my swearing-in, I remarked that through the doors of the U.S. Patent and Trademark Office comes our future. And indeed it does, and it always did. We must celebrate that. From Thomas Edison to the Wright Brothers, from Stanley Cohen and Herbert Boyer to Steve Jobs, American inventors have fueled the imagination of our people for generations. We are a pioneering people, who overcome large obstacles in order to realize our dreams and create prosperity. Inventors help make dreams reality. And American invention changes the world. Indeed, with American patents, humans made light, began to fly, treated disease, and enabled instant communications across the globe from tiny devices in our pockets. And those patents also enabled these inventors to start companies and grow our economy. Our dialogue and policies need to be focused on these amazing achievements, and how we can encourage more of them. Take Walter Hawkins as another example: Hawkins, who in 1942 became the first African American scientist on staff at AT&T’s Bell Labs, developed the plastic coating that covers telephone wires, a more versatile, durable and eco-friendly alternative to the lead standard at the time. It was so durable, in fact, and so effective, that Hawkins’ invention enabled huge investments to bring affordable phone service across America, including rural areas, and to millions of people in the 20th Century. Inventor stories like Hawkins’ and Harari’s are those we need to tell. This is the American patent system. This is the dialogue we need to have. And this should be the focus of our patent policy. This is how we incentivize innovation and growth.
But, how exactly do we translate this into a better patent system? Here’s a start: when we write, interpret, and administer patent laws, we must consistently ask ourselves: Are we helping these inventors? Whether it’s an individual tinkering in her garage, or a team at a large corporation, or a laboratory on a university campus—we must ask ourselves: are we helping them? Are we incentivizing innovation? And that brings me to my second principal point for today: increasing the reliability of the patent grant. Because that is key to incentivizing innovation. Without reliable patents, inventors like Dr. Eli Harari are less likely to risk it all in order to bring their new concepts to the market. As I said at my Senate confirmation hearing: “When patent owners and the public have confidence in the patent grant, inventors are encouraged to invent, investments are made, companies grow, jobs are created, science and technology advance.”
This year’s Chamber report explains why our patent system has dropped to number 12: “innovators and creators face a challenging environment for protecting their IP under current U.S. law… U.S. patentability standards and patent opposition procedures continue to create uncertainty for rightsholders.” So your report identifies two principal reasons for the increased uncertainty (or lower reliability) of our patents: (1) Patentability Standards, or more specifically, patent subject matter eligibility pursuant to 35 USC Section 101; and (2) Opposition procedures, namely, the post-grant procedures, such as IPR, that were established by the America Invents Act.
Let me address each of these in turn. First, our current law surrounding patentable subject matter has created a more unpredictable patent landscape that is hurting innovation and, consequently, investment and job creation. Recent cases from the Supreme Court – Mayo, Myriad, and Alice – have inserted standards into our interpretation of the statute that are difficult to follow. Lower courts applying these cases are struggling to issue consistent results. Patent lawyers trying to advise their clients are, in turn, struggling to predict the outcome with respect to certain patents. And examiners at the USPTO must spend increased amounts of time addressing this challenging issue. The current standards are difficult for all: stakeholders, courts, examiners, practitioners, and investors alike. System-wide, a significant amount of time is being spent trying to figure out where the lines should be drawn, and what’s in and what’s out. And multiple people looking at the same patent claims often have trouble agreeing on, and predicting, the outcome.
Something must be done. To be sure, we must and will apply Supreme Court law faithfully. This does not mean, however, that more cannot be done to increase clarity and predictability. Of course, given our statutory mandate, there is only so much that the USPTO can do. But within that mandate, we will do everything we can. Currently, we’re actively looking for ways to simplify the eligibility determination for our examiners through forward-looking guidance. Through our administration of the patent laws, which we are charged to execute, the USPTO can lead, not just react to every new case the courts issue.
Second, your report also mentions our “patent opposition procedures” as a reason for the increased uncertainty of our patents. This refers primarily to our Inter Partes Review, or the IPR system. This was a creation of the America Invents Act, and since its introduction five and a half years ago, we have now conducted more than 8,000 such proceedings. It’s been a very popular proceeding. Opinions on this new system diverge widely. Yet each opinion is passionately held by its supporters. Pointing to the high invalidation rates in IPR proceedings, some hate the new system with vigor, arguing that it’s an unfair process that tilts too much in favor of the petitioner. Others love the system, and think it’s the best tool we have to correct errors, eliminate “bad patents,” and improve patent quality. Who is right? Well, both arguments have legitimate elements.
But I encourage people to reduce the hyperbole and look at the process with fresh eyes, in order to understand its true benefits and true challenges. This is what we are now doing at the USPTO. Indeed, it’s one of our highest priorities. We need to carefully balance rights-holder’s and rights challenger’s interests. On the one hand, for example, this proceeding can come years after issuance, when the patent owners and the public may both have relied on those rights and made investments accordingly. On the other hand, we do want to execute the statutory mandate and help maintain the quality of patent rights. And – assuming the Supreme Court does not declare it unconstitutional – we do want the IPR system to effectively address invalid claims, but at the same time, we don't want to throw out the baby with the bathwater. The filters need to be appropriately set. And so, among various other things, we are now examining: how and when we institute proceedings, the standards we employ during the proceedings, and how we conduct the overall proceedings.The goal, with whatever action we take, is to increase predictability of appropriately-scoped claims.
Finally on the predictability front, let me mention something that was not addressed directly in your report. If we want truly reliable rights, we must ensure that we issue appropriately-scoped patent claims from the get-go. In other words, we must also focus on the front end. And since our examiners are first in line, we must ensure that they have the tools they need for a thorough search and examination. Our examiners already do a fabulous job. And it is not easy, given the state of the law and all the information that needs to be processed and analyzed. To further improve the original examination, a next step would be to increase examiners’ ability to find the best prior art during examination. At times, there is a gap between the prior art found during initial examination and the prior art found during litigation. There are many reasons for this, but the main culprits are the ever-accelerating publication and accessibility explosions. These are issues that face every Patent Office around the world. Indeed, we are ahead of most others on this front. But if we could further narrow this gap in prior art between examination and litigation, then the accuracy of the patent grant – and therefore, its reliability – would increase. We are focusing on this as well, together with the other issues I’ve already mentioned.
Overall, addressing these various issues, especially as outlined in your report – from patentable subject matter to a carefully balanced post-grant process – we can return our patent system to a higher level of predictability and stability. Finding the right balance on these issues requires work, and a holistic, collaborative approach.
As Neil mentioned in his introduction, I come from the private sector. I’ve seen our patent system at work from all sides. And I have represented clients from various sectors, of different sizes, and in different postures. I understand that there are a variety of legitimate points of view. We must work together to achieve a careful balance that is most beneficial to the American economy as a whole. In the end, the hallmarks of a well-functioning patent system are the reliability and predictability of quality patents. This is critical for both patent holders and the public. And the benefits of a well-functioning patent system are indeed unmistakable. It enabled inventors like Eli Harari and Walter Hawkins, who exemplify the brilliance of American innovation, to make significant technological advances while also generating remarkable job creation and progress for our nation. Of his flash memory inventions, Dr. Harari told me, “We really changed the world.” And as to how his patents helped him start his company? He said, “With a patent at a minimum we were able to speak relatively freely under an NDA. And in a small start-up, you need partners who can help you accelerate your development and to invest in you.” “If you are not protected,” he said, “God help you!”
Let me leave you with this: During his first address to Congress in February of last year, President Trump noted that, on our 100th anniversary, in 1876, citizens from throughout the country came to Philadelphia to celebrate America’s centennial. At that celebration, the country’s inventors showed off their wonderful creations. Alexander Graham Bell presented his telephone for the first time. Remington revealed the first typewriter; and Thomas Edison showed an automatic telegraph and an electric pen. President Trump then asked all of us to imagine the wonders our country could know in America’s 250th year. He asked us to think about all the illnesses that could be cured, the distant worlds we could walk on, and the marvels we could achieve, if only we could set free the dreams of Americans. That’s how I think about intellectual property.
As I see it, no dream is too big if we unleash the power of innovation, and give our nation’s inventors the protections they need to succeed. That’s why it’s so important that we find the right balance in the IP system. This is something I’m very passionate about, and fully committed to, as I lead the U.S. Patent and Trademark Office. We have a remarkable patent system, born from our Constitution and steeped in our history. It is a crown jewel; a gold standard. We have a unique opportunity to ensure it meets its full Constitutional mandate to promote innovation and grow our economy. I look forward to working with all of you in support of that great endeavor. Thank you again for the invitation to participate in this important discussion."
I have only a few comments on Mr. Iancu's speech. His story about Dr. Harari is correct. I worked at WSGR on the SanDisk team that defeated Samsung in the ITC in 1996-1997. As I worked on that case, I came to respect both his brilliance and kindness and willingness to come from Israel, earn PhD in Physics from Princeton, work at Intel then leave all of that to start his own company. Dr. Harari really does believe in the US patent system. Check out how many SanDisk patents have issued and filing patents was the first order of business. You can ask Dr. Harari, but in my view that enforcement of SanDisk's patents was fundamental to its early success in the marketplace and many cell phones and digital cameras still use SanDisk patented technology today.
Because not many know about the SanDisk v. Samsung case, I should note SanDisk precipitated the patent dispute by having the audacity to ask the much larger Samsung to sign a patent license. Samsung would have none of that and filed a declaratory judgment action seeking to show the patents invalid in the district court. SanDisk aware of the expense of fighting it out in district court decided to file an ITC action to seek patent enforcement within 12-18 months. Fortunately, SanDisk won on both the patents which led Samsung and other large foreign competitors to sign patent licenses. Question whether with the unpredictable subject matter eligibility law, it would have had the same outcome.
Mr. Iancu mentions the negative view of patents being propagated in the press. For example, one myth I have heard is patents hinder innovation and startups. Keep in mind nearly everyone in the world acts in self interest -- and when a big tech companies (or related academic) tells you patents are harming the economy, or surprisingly that they harm innovation or startups ask yourself why is this academic/think tank or lobbyist telling me US patents are harming smaller competitors?
Thus, I appreciate Mr. Iancu's boldness cutting through the constant drum of misinformation and acknowledging we are at the cross roads with patents and startups need an improved reliable US patent system especially in terms of patent eligibility and IPR to succeed. I have seen patent success first hand, love this country and hate to see US patents harmed by misinformation.
Copyright © 2018 Robert Moll. All rights reserved.
Tuesday, February 13, 2018
USPTO & Berkeley Center for Law & Technology - Start-Up Nation Comes to Silicon Valley: Comparing the U.S. and Israel Patent Systems and Start-up Cultures
Today, the USPTO and Berkeley Center for Law & Technology announced registration is still open for "Start-Up Nation Comes to Silicon Valley: Comparing the U.S. and Israel Patent Systems and Start-up Cultures."
Here are the details:
"Friday, February 16, 2018
12 noon - 1:15 PM
Silicon Valley U.S. Patent & Trademark Office
26 South 4th Street
San Jose, CA 95112
Join leaders from across the innovation ecosystem in a comparative U.S. - Israel discussion on promoting start-up activity and fostering economic growth. Panelists will highlight trends in entrepreneurial activity taking place in both countries and will share their experiences with patent practices and address questions of patent subject eligibility and patentability across emerging technologies.
This event is free and open to the public. Space is limited.
Register here by February 15, 2018
Speakers:
• Moderator: Peter Menell, Koret Professor of Law and Co-Founder/Director, Berkeley Center for Law & Technology, Berkeley Law
• Asa Kling, former Director of the Israel Patent Office and Commissioner of Patents, Trademarks, and Designs (2011 - 2017) and Gilbert Distinguished Visiting Fellow of the Berkeley Institute of Jewish Law and Israel Studies at Berkeley Law
• John Cabeca, Regional Director, Silicon Valley U.S. Patent and Trademark Office
• Dan Lang, Vice President, Intellectual Property and Deputy General Counsel, Cisco Systems
• Yasmin Lukatz, Executive Director, ICON -Israel Collaboration Network"
Copyright © 2018 Robert Moll. All rights reserved.
Here are the details:
"Friday, February 16, 2018
12 noon - 1:15 PM
Silicon Valley U.S. Patent & Trademark Office
26 South 4th Street
San Jose, CA 95112
Join leaders from across the innovation ecosystem in a comparative U.S. - Israel discussion on promoting start-up activity and fostering economic growth. Panelists will highlight trends in entrepreneurial activity taking place in both countries and will share their experiences with patent practices and address questions of patent subject eligibility and patentability across emerging technologies.
This event is free and open to the public. Space is limited.
Register here by February 15, 2018
Speakers:
• Moderator: Peter Menell, Koret Professor of Law and Co-Founder/Director, Berkeley Center for Law & Technology, Berkeley Law
• Asa Kling, former Director of the Israel Patent Office and Commissioner of Patents, Trademarks, and Designs (2011 - 2017) and Gilbert Distinguished Visiting Fellow of the Berkeley Institute of Jewish Law and Israel Studies at Berkeley Law
• John Cabeca, Regional Director, Silicon Valley U.S. Patent and Trademark Office
• Dan Lang, Vice President, Intellectual Property and Deputy General Counsel, Cisco Systems
• Yasmin Lukatz, Executive Director, ICON -Israel Collaboration Network"
Copyright © 2018 Robert Moll. All rights reserved.
Thursday, May 25, 2017
Professor Stephen Haber - Patents and Wealth of Nations
Tonight, I recommend reading Professor Stephen Haber's article Patents and Wealth of Nations. This article debunks the myth that the US economy is harmed by patents. I haven't read the entire article, but whatever I read made sense and was interesting. For example, please check out this passage addressing Bessen and Meurer's misleading claim that PAE's resulted in a $29B tax on innovation:
"There is also no convincing evidence that PAEs negatively affect innovation. Professors Schwartz and Kesan, for example, analyze the data and methods employed by Bessen and Meurer to produce the widely cited claim that in 2011 PAEs generated a direct tax on innovation of $29 billion.
Their analysis effectively undermines the Bessen-Meurer claim. Kesan and Schwartz point out that the Bessen-Meurer estimate is generated from a survey of eighty-two business enterprises regarding their experiences with PAE litigation, but those firms were neither randomly selected nor chosen so as to generate a representative sample. Rather, Bessen and Meurer relied on a survey sent to “‘about 250 companies,’ which include ‘RPX clients and nonclient companies with whom RPX has relationships.’” RPX is a business enterprise that describes itself as a defensive patent aggregator. There are therefore multiple reasons to be concerned about sample selection bias.
Kesan and Schwartz also demonstrate that Bessen and Meurer conflate “costs” with “transfers.” Slightly less than one-quarter of their $29 billion figure ($6.7 billion) represents actual litigation costs; the vast majority of the $29 billion is composed of settlement, licensing, and judgment amounts, which are the rewards that patent holders should have received for their intellectual property in the absence of infringement.
Kesan and Schwartz also point out that Bessen and Meurer do not ask whether the $6.7 billion in litigation costs is a large number in relation to some benchmark. They ask how $6.7 billion compares to the amounts spent by operating companies that regularly sue each other for patent infringement (e.g., cases such as Apple v Samsung). We would point out deadweight losses are usually assessed as a percentage of GDP, and on that basis the $6.7 billion in PAE litigation costs in 2011 amounted to only 0.05 percent of America’s $15.5 trillion national product. To put this in context, $6.9 billion was the amount Americans spent in 2015 on Halloween.
Finally, Kesan and Schwartz note that any analysis of costs must be balanced by an analysis of benefits, but these are ignored by Bessen and Meurer. Recall here the history of the laser. The initial patents generated lengthy and costly litigation financed by a PAE. But who would maintain that those costs represented a deadweight loss to the U.S. economy in light of the hundreds of billions of dollars generated by the commercialization of laser-based products over the past five decades?"
Copyright © 2017 Robert Moll. All rights reserved.
"There is also no convincing evidence that PAEs negatively affect innovation. Professors Schwartz and Kesan, for example, analyze the data and methods employed by Bessen and Meurer to produce the widely cited claim that in 2011 PAEs generated a direct tax on innovation of $29 billion.
Their analysis effectively undermines the Bessen-Meurer claim. Kesan and Schwartz point out that the Bessen-Meurer estimate is generated from a survey of eighty-two business enterprises regarding their experiences with PAE litigation, but those firms were neither randomly selected nor chosen so as to generate a representative sample. Rather, Bessen and Meurer relied on a survey sent to “‘about 250 companies,’ which include ‘RPX clients and nonclient companies with whom RPX has relationships.’” RPX is a business enterprise that describes itself as a defensive patent aggregator. There are therefore multiple reasons to be concerned about sample selection bias.
Kesan and Schwartz also demonstrate that Bessen and Meurer conflate “costs” with “transfers.” Slightly less than one-quarter of their $29 billion figure ($6.7 billion) represents actual litigation costs; the vast majority of the $29 billion is composed of settlement, licensing, and judgment amounts, which are the rewards that patent holders should have received for their intellectual property in the absence of infringement.
Kesan and Schwartz also point out that Bessen and Meurer do not ask whether the $6.7 billion in litigation costs is a large number in relation to some benchmark. They ask how $6.7 billion compares to the amounts spent by operating companies that regularly sue each other for patent infringement (e.g., cases such as Apple v Samsung). We would point out deadweight losses are usually assessed as a percentage of GDP, and on that basis the $6.7 billion in PAE litigation costs in 2011 amounted to only 0.05 percent of America’s $15.5 trillion national product. To put this in context, $6.9 billion was the amount Americans spent in 2015 on Halloween.
Finally, Kesan and Schwartz note that any analysis of costs must be balanced by an analysis of benefits, but these are ignored by Bessen and Meurer. Recall here the history of the laser. The initial patents generated lengthy and costly litigation financed by a PAE. But who would maintain that those costs represented a deadweight loss to the U.S. economy in light of the hundreds of billions of dollars generated by the commercialization of laser-based products over the past five decades?"
Copyright © 2017 Robert Moll. All rights reserved.
Monday, March 30, 2015
Fierstein - A Triumph of Genius: Edwin Land, Polaroid, and the Kodak Patent War
I suggest reading Ronald Fierstein's book A Triumph of Genius: Edwin Land, Polaroid, and the Kodak Patent War. It's a lengthy 672 pages, with many details about patent litigation. I guess it's to be expected as Mr. Fierstein was a lawyer at Fish & Neave during the case resulting in Polaroid's $925 million award for patent infringement.
From the editor: "Apple founder Steve Jobs once hailed Edwin Land, the founder of Polaroid and the father of instant photography, as 'a national treasure' and once confessed to a reporter that meeting Land was 'like visiting a shrine.' By his own admission, Jobs modeled much of his own career after Land's. Both Jobs and Land stand out today as unique and towering figures in the history of technology. Neither had a college degree, but both built highly successful and innovative organizations."
Copyright © 2015 Robert Moll. All rights reserved.
From the editor: "Apple founder Steve Jobs once hailed Edwin Land, the founder of Polaroid and the father of instant photography, as 'a national treasure' and once confessed to a reporter that meeting Land was 'like visiting a shrine.' By his own admission, Jobs modeled much of his own career after Land's. Both Jobs and Land stand out today as unique and towering figures in the history of technology. Neither had a college degree, but both built highly successful and innovative organizations."
Copyright © 2015 Robert Moll. All rights reserved.
Sunday, March 8, 2015
Los Altos Town Crier - Robert Showen - Los Altos Scientist and Inventor of the Year 2014
I suggested reading Los Altos scientist named inventor of the year 2014 for a story on how US patents can play a role in a tech startup.
The Silicon Valley Intellectual Property Lawyers Association named Robert Showen for his inventions for ShotSpotter Inc. (now SST Inc.), a gunfire alert and analysis company, which has set up a vast network of microphones that detect gunfire, record the audio, map the location and send alerts to local patrol officers. It had a humble beginning with a computer on the grand piano connected to the rest of the prototype set up in rooms of his house, but is now a system implemented in 90 cities across the United States to reduce gun violence.
"'It was sort of a shot out of the blue,' Showen said of the honor. 'I hadn’t expected it.'"
Copyright © 2015 Robert Moll. All rights reserved.
The Silicon Valley Intellectual Property Lawyers Association named Robert Showen for his inventions for ShotSpotter Inc. (now SST Inc.), a gunfire alert and analysis company, which has set up a vast network of microphones that detect gunfire, record the audio, map the location and send alerts to local patrol officers. It had a humble beginning with a computer on the grand piano connected to the rest of the prototype set up in rooms of his house, but is now a system implemented in 90 cities across the United States to reduce gun violence.
"'It was sort of a shot out of the blue,' Showen said of the honor. 'I hadn’t expected it.'"
Copyright © 2015 Robert Moll. All rights reserved.
Thursday, January 1, 2015
Zachary Crockett - The Man Who Invented Scotch Tape
Happy New Year! Here's an article by Zachary Crockett The Man Who Invented Scotch Tape.
Zachary is a gifted storyteller, and his article about 3M's Richard Drew convinced me to buy his coauthored book Hipster Business Models: How to make a living in a modern world.
Here's the tail end of the article:
"In 1980, at age 81, Richard Drew passed away. He’d spent more than 40 years at 3M as an inventor, two decades more as a contractor, and had 30 patents to his name.
Copyright © 2015 Robert Moll. All rights reserved.
Zachary is a gifted storyteller, and his article about 3M's Richard Drew convinced me to buy his coauthored book Hipster Business Models: How to make a living in a modern world.
Here's the tail end of the article:
"In 1980, at age 81, Richard Drew passed away. He’d spent more than 40 years at 3M as an inventor, two decades more as a contractor, and had 30 patents to his name.
Today, the technologies he created in Pro-Fab Labs account for more than 20 percent of 3M’s sales. His Scotch Transparent Tape remains the crown jewel of 3M’s immense, multi-billion dollar product line, and can be found in nearly 90% of American homes.
But Drew’s legacy extends deeper than the manifestation of a physical product, says old co-worker Paul E. Hansen.The reward for persistence is internal,” he writes. "The person who is persistent and eventually succeeds is usually only recognized for accomplishing the feat; seldom does anyone appreciate all that went into making the success a reality."
But Drew’s legacy extends deeper than the manifestation of a physical product, says old co-worker Paul E. Hansen.The reward for persistence is internal,” he writes. "The person who is persistent and eventually succeeds is usually only recognized for accomplishing the feat; seldom does anyone appreciate all that went into making the success a reality."
Copyright © 2015 Robert Moll. All rights reserved.
Friday, November 28, 2014
MIT Technology Review - Steve Jobs Lives on at the Patent Office
Tonight, I recommend reading Antonio Regalado's article in MIT Technology Review:
Steve Jobs Lives on at the Patent Office.
As stated: "Years after his death, the former Apple CEO still wins patents." It is amazing that he is an inventor on 458 US patents (141 posthumously awarded). Some in the article questioned Steve Jobs role as a joint inventor, but the law only requires an inventive contribution. Beside Mr. Jobs' ability to collaborate with many others is a strength. It is also difficult to argue against his innovative contribution and influence on a tech company brought back from the brink in 1990s to the most valuable corporation in the nation building one of the largest US patent portfolios.
Copyright © 2014 Robert Moll. All rights reserved.
As stated: "Years after his death, the former Apple CEO still wins patents." It is amazing that he is an inventor on 458 US patents (141 posthumously awarded). Some in the article questioned Steve Jobs role as a joint inventor, but the law only requires an inventive contribution. Beside Mr. Jobs' ability to collaborate with many others is a strength. It is also difficult to argue against his innovative contribution and influence on a tech company brought back from the brink in 1990s to the most valuable corporation in the nation building one of the largest US patent portfolios.
Copyright © 2014 Robert Moll. All rights reserved.
Saturday, November 22, 2014
Forbes - Real Patent Reform Should Strengthen Property Rights, Not Weaken Them
Tonight, I suggest reading Carly Fiorina's article: Real Patent Reform Should Strengthen Property Rights, Not Weaken Them.
Copyright © 2014 Robert Moll. All rights reserved.
Copyright © 2014 Robert Moll. All rights reserved.
Sunday, November 9, 2014
IP Watchdog - A Strong Innovation Ecosystem is Needed for Job Creation
Tonight, I recommend reading Gene Quinn's article: A Strong Innovation Ecosystem is Needed for Job Creation, which summarizes Jay Walker's talk at the 2014 IP Dealmakers Forum on November 6, 2014.
Copyright © 2014 Robert Moll. All rights reserved.
Copyright © 2014 Robert Moll. All rights reserved.
Sunday, April 20, 2014
Evan Schwartz - Juice the Creative Fuel That Drives World-Class Inventors
I have ordered books at Amazon.com way too often. They make it too easy with sneak-a-peek, reader reviews, one-click ordering, and free shipping with an order > $35. So I admit I have books on the shelf that I thought would be good, but never got around to reading.
Evan Schwartz's Juice the Creative Fuel That Drives World-Class Inventors is just such a book. Tonight, looking for something for the blog, I resumed reading it and I would say so far (not done yet) this is an excellent book on the process of invention. It is not a theoretical tome, but a series of stories how various people invented important technologies in the last 60 years or so.
I will give one example from Mr. Schwartz's book, because it shows invention happens despite corporate trappings. The inventor's name was Nick Holonyak, who by his own admission was not 100% smart, and got lucky to be the first graduate student of John Bardeen, who co-invented the transistor at Bell Labs.
Later Mr. Holonyak joined GE to improve semiconductors, and heard something odd that distracted him from his work. Semiconductors could produce invisible IR. He began testing (i.e., playing around) with various semiconductors and learned that gallium arsenide phosphide when "juiced" with electricity emitted a speck of red light.
Mr. Schwartz tells us Mr. Holonyak "created this opportunity in his mind. My colleagues thought I was a bit nutty." He had to "keep his secret from his boss" and "worked on the sly for two years" noting if management discovered him working on this, "I would have been in trouble and gotten fired."
It sounds a bit crazy, right? But I was told by another semiconductor pioneer Armen Sahagen that his company had tasked him, and his team to establish the "right conditions" so the semiconductor they were using would quit generating that annoying light! He laughed and laughed after he told me this story.
Mr. Holonyak is widely credited with inventing the light-emitting diodes-- the LED. Of course, today LEDs are in use everywhere. Why? They can last ten years or longer, are incredibly efficient, and produce little heat. Mr. Schwartz tells us there are "twelve LED-based products sold for every person on earth."
Thanks to Mr. Holonyak having the insight and guts to invent something that matters. Corporate management can "juice" innovation not by tightly "managing" the people, but giving them the support to really innovate.
Although I am still reading Mr. Schwartz book, I can recommend it because this story and others match what I have observed in over two decades of working with inventors. Most of the good ones are just like this. They "create opportunities in the mind," are a "little sly," and at times must shield their nascent work from skepticism and corporate objectives, while having the sense to "spring it on management" once it is ready.
Copyright © 2014 Robert Moll. All rights reserved.
Evan Schwartz's Juice the Creative Fuel That Drives World-Class Inventors is just such a book. Tonight, looking for something for the blog, I resumed reading it and I would say so far (not done yet) this is an excellent book on the process of invention. It is not a theoretical tome, but a series of stories how various people invented important technologies in the last 60 years or so.
I will give one example from Mr. Schwartz's book, because it shows invention happens despite corporate trappings. The inventor's name was Nick Holonyak, who by his own admission was not 100% smart, and got lucky to be the first graduate student of John Bardeen, who co-invented the transistor at Bell Labs.
Later Mr. Holonyak joined GE to improve semiconductors, and heard something odd that distracted him from his work. Semiconductors could produce invisible IR. He began testing (i.e., playing around) with various semiconductors and learned that gallium arsenide phosphide when "juiced" with electricity emitted a speck of red light.
Mr. Schwartz tells us Mr. Holonyak "created this opportunity in his mind. My colleagues thought I was a bit nutty." He had to "keep his secret from his boss" and "worked on the sly for two years" noting if management discovered him working on this, "I would have been in trouble and gotten fired."
It sounds a bit crazy, right? But I was told by another semiconductor pioneer Armen Sahagen that his company had tasked him, and his team to establish the "right conditions" so the semiconductor they were using would quit generating that annoying light! He laughed and laughed after he told me this story.
Mr. Holonyak is widely credited with inventing the light-emitting diodes-- the LED. Of course, today LEDs are in use everywhere. Why? They can last ten years or longer, are incredibly efficient, and produce little heat. Mr. Schwartz tells us there are "twelve LED-based products sold for every person on earth."
Thanks to Mr. Holonyak having the insight and guts to invent something that matters. Corporate management can "juice" innovation not by tightly "managing" the people, but giving them the support to really innovate.
Although I am still reading Mr. Schwartz book, I can recommend it because this story and others match what I have observed in over two decades of working with inventors. Most of the good ones are just like this. They "create opportunities in the mind," are a "little sly," and at times must shield their nascent work from skepticism and corporate objectives, while having the sense to "spring it on management" once it is ready.
Copyright © 2014 Robert Moll. All rights reserved.
Monday, April 14, 2014
Patent Bolt - Google Patent Applications - Smart Contact Lenses
Patent Bolt states the USPTO published Google seven patent applications describing smart contact lenses in An Avalanche of New Google Contact Lens Patents Come to Light. That's a smart way to expand the market for Google Glass, right? And it may also help with people who don't like Google Glass, as long as the user keeps the public at a "undetectable distance" while he or she snaps photos with the camera embedded in the contact lenses.
More seriously, the smart contact lenses could have real value in certain contexts. As stated in Patent Bolt: a blind person wearing Google's contact lens with a built-in camera may be walking on a sidewalk and approaching an intersection. The analysis component of the contact lens #265 (noted further below) can process the raw image data of the camera to determine a blind person is approaching intersection with a crosswalk and establish that there is a car approaching the intersection.
Copyright © 2014 Robert Moll. All rights reserved.
More seriously, the smart contact lenses could have real value in certain contexts. As stated in Patent Bolt: a blind person wearing Google's contact lens with a built-in camera may be walking on a sidewalk and approaching an intersection. The analysis component of the contact lens #265 (noted further below) can process the raw image data of the camera to determine a blind person is approaching intersection with a crosswalk and establish that there is a car approaching the intersection.
Copyright © 2014 Robert Moll. All rights reserved.
Tuesday, April 8, 2014
WSJ - The Wright Brothers and a Patent-Law Dogfight
In The Wright Brothers and a Patent-Law Dogfight Mr. Goldstone argues that the US patent system is not adept at dealing with new techologies. He says look at the Wright brothers patent wrangling and argues that it led to their demise which should be instructive to innovators.
Mr. Goldstone has taken on quite the task. To get started he says federal courts are now awash in patent infringement suits that they seem to have little real notion of how to resolve. Referring to Alice v. CLS Bank, it is not that clear he isn't right, but generally federal district courts know how to resolve cases. I think it is more a uncertainty problem as the Federal Circuit and Supreme Court are not shy to express different notions on how to resolve cases.
Referring back to the article, Mr. Goldstone says it should be instructive to see how the patent system did not work that well with regard to a watershed innovation: flight. Yes, the Wright brothers did seem to lose their way in seeking patent royalties from "everyone." But it appears the real problem is their technology was inferior. And the Wright brother's situation gets overblown because it seems to say tech companies should "quit patent wrangling and get back to innovation" as "Orville Wright died penniless after attending too many depositions and micromanaging patent litigation." Never mind that they brought an inferior solution to the marketplace, it's about the risks of focusing on patent enforcement.
On the other hand, the article highlights an important point that isn't typically realized: the non-infringement defense is a potent one. Stanford University law professor Mark Lemley stated in Does Familiarity Breed Contempt Among Judges Deciding Patent Cases: "We find that judges with more patent experience are less likely to rule for patentees on infringement, though not on validity. Familiarity, it seems, breeds contempt – not necessarily of patents, but of the breadth patentees sometimes claim for their legal rights."
In the end the article tries to support a conclusion about the patent system not dealing with new technology with unrelated and/or shaky premises: (1) the courts are swamped; and (2) the courts are clueless, and suggests seeking patent royalties could result in the fate of Orville -- incurable disease and dying penniless.
Copyright © 2014 Robert Moll. All rights reserved.
Mr. Goldstone has taken on quite the task. To get started he says federal courts are now awash in patent infringement suits that they seem to have little real notion of how to resolve. Referring to Alice v. CLS Bank, it is not that clear he isn't right, but generally federal district courts know how to resolve cases. I think it is more a uncertainty problem as the Federal Circuit and Supreme Court are not shy to express different notions on how to resolve cases.
Referring back to the article, Mr. Goldstone says it should be instructive to see how the patent system did not work that well with regard to a watershed innovation: flight. Yes, the Wright brothers did seem to lose their way in seeking patent royalties from "everyone." But it appears the real problem is their technology was inferior. And the Wright brother's situation gets overblown because it seems to say tech companies should "quit patent wrangling and get back to innovation" as "Orville Wright died penniless after attending too many depositions and micromanaging patent litigation." Never mind that they brought an inferior solution to the marketplace, it's about the risks of focusing on patent enforcement.
On the other hand, the article highlights an important point that isn't typically realized: the non-infringement defense is a potent one. Stanford University law professor Mark Lemley stated in Does Familiarity Breed Contempt Among Judges Deciding Patent Cases: "We find that judges with more patent experience are less likely to rule for patentees on infringement, though not on validity. Familiarity, it seems, breeds contempt – not necessarily of patents, but of the breadth patentees sometimes claim for their legal rights."
Copyright © 2014 Robert Moll. All rights reserved.
Sunday, April 6, 2014
UC Berkeley Professor Suzanne Scotchmer: 1950 - 2014
UC Berkeley Professor Suzanne Scotchmer, a leading economist on intellectual property law and policy and innovation, passed away after a bout with cancer on January 30, 2014.
We probably have different stories about how we discovered Professor Scotchmer's writing. I was searching for "something else" on the Web and I stumbled across her articles on intellectual property: each article was unique and brilliant, which compelled me to read more. If you are not familiar, you might start with Standing on the Shoulders of Giants: Cumulative Research and the Patent Law, which elegantly describes patent incentives we should attribute to cumulative innovation.
If you are interested, UC Berkeley Center for Law & Technology is hosting a program to honor Professor Scotchmer on May 1, 2014.
Copyright © 2014 Robert Moll. All rights reserved.
We probably have different stories about how we discovered Professor Scotchmer's writing. I was searching for "something else" on the Web and I stumbled across her articles on intellectual property: each article was unique and brilliant, which compelled me to read more. If you are not familiar, you might start with Standing on the Shoulders of Giants: Cumulative Research and the Patent Law, which elegantly describes patent incentives we should attribute to cumulative innovation.
If you are interested, UC Berkeley Center for Law & Technology is hosting a program to honor Professor Scotchmer on May 1, 2014.
Copyright © 2014 Robert Moll. All rights reserved.
Tuesday, November 5, 2013
Federal Circuit Chief Judge Rader Speech - Patent Law and Litigation Abuse
Federal Circuit Chief Judge Rader seems to relish poking the anti-patent crowd in the eye. On November 1, 2013, Judge Rader gave a speech Patent Law and Litigation Abuse in Plano, Texas.
Here's a passage from his speech:
"As an illustration of the crisis of confidence in the benefits of Patent Law, I wished to just discuss one unsubstantiated charge against the merits of this system of Constitutional dimension. Academics often charge the Patent system with creating a so-called "tragedy of the anti-commons." This academic canard suggests that a "thicket" of patents can actually inhibit innovation; that the administrative burdens of enforcing patents can multiply to frustrate the goal of the Act. Thus, the law of innovation supposedly works against itself. In an age of empirical research to verify every legal hypothesis, I would urge you and any policymaker to reject this academic supposition – whether it comes from a high court or any other source – until and unless it is verified by empirical data. By the way, the only studies on this topic that I have seen could not verify this guess but generally confirmed the opposite – that patents spur innovation.
May I offer a common sense rebuttal to this academic hypothesis? [Hold up my smart phone] This smart phone resides in the technological space most occupied by patents, perhaps in the history of patent law dating back to 1624. With design patents as part of the equation, this device probably includes easily more than a thousand active patents. If you count expired patents in this technology back to the advent of the computer age, this device would implicate tens of thousands of patents. If ever the administrative burdens of a concentration of patents would inhibit innovation, this technology would be the place to observe that encumbrance. Now you tell me: is this technology experiencing sluggish and encumbered innovation? I doubt that I could keep track of the pace of innovation in this technology if I devoted my full time to the project.
No doubt a study would show that the disclosure benefits of patents bring the entire world into the innovation circle that drives smart phone technology forward faster than any of us can fathom. I am afraid the “tragedy of the anti-commons” has its own tragedy: it simply is academic nonsense. The patent system does not inhibit
invention."
Copyright © 2013 Robert Moll. All rights reserved.
Here's a passage from his speech:
"As an illustration of the crisis of confidence in the benefits of Patent Law, I wished to just discuss one unsubstantiated charge against the merits of this system of Constitutional dimension. Academics often charge the Patent system with creating a so-called "tragedy of the anti-commons." This academic canard suggests that a "thicket" of patents can actually inhibit innovation; that the administrative burdens of enforcing patents can multiply to frustrate the goal of the Act. Thus, the law of innovation supposedly works against itself. In an age of empirical research to verify every legal hypothesis, I would urge you and any policymaker to reject this academic supposition – whether it comes from a high court or any other source – until and unless it is verified by empirical data. By the way, the only studies on this topic that I have seen could not verify this guess but generally confirmed the opposite – that patents spur innovation.
May I offer a common sense rebuttal to this academic hypothesis? [Hold up my smart phone] This smart phone resides in the technological space most occupied by patents, perhaps in the history of patent law dating back to 1624. With design patents as part of the equation, this device probably includes easily more than a thousand active patents. If you count expired patents in this technology back to the advent of the computer age, this device would implicate tens of thousands of patents. If ever the administrative burdens of a concentration of patents would inhibit innovation, this technology would be the place to observe that encumbrance. Now you tell me: is this technology experiencing sluggish and encumbered innovation? I doubt that I could keep track of the pace of innovation in this technology if I devoted my full time to the project.
No doubt a study would show that the disclosure benefits of patents bring the entire world into the innovation circle that drives smart phone technology forward faster than any of us can fathom. I am afraid the “tragedy of the anti-commons” has its own tragedy: it simply is academic nonsense. The patent system does not inhibit
invention."
Copyright © 2013 Robert Moll. All rights reserved.
Monday, July 29, 2013
Not All Non-Practicing Entities Are Patent Trolls - The Wright Brothers
UCLA professor Kal Raustiala and NYU professor Christopher Jon Sprigman's article How to Know a Patent Troll When You See One? You Can't is right-- it is difficult to distinguish whether a non-practicing entity (NPE) is a patent troll. But it is important to try given some important innovators in American history such as the Wright Brothers were NPEs. See CNET's slideshow presentation: How the Wright brothers won the race to invent the airplane (pictures).
Copyright © 2013 Robert Moll. All rights reserved.
Copyright © 2013 Robert Moll. All rights reserved.
Thursday, August 9, 2012
Apple v. Samsung - iPhone Innovation Revealed at Trial
Smart inventors may have different characteristics, but in my experience many have something in common: they can't stop inventing.
As a patent attorney working with budgets, I initially found it a bit frustrating-- the invention kept evolving or even fundamentally changed between drafting sessions. But later I realized the same restless mind unwilling to live with a problem leading to the initial invention drove the inventor to improve the solution.
Tonight, Alan Cooper sent an article CNN Money 19 incredible Apple secrets revealed in court reminding me that the best inventors continually innovate. The article notes that the Apple v. Samsung trial has lifted secrecy surrounding Apple product development. It shows the final design of the Apple iPhone did not come after a few iterations. No, the photos and article show it was the multiyear major effort involving generation of many "good" intermediate designs that were rejected.
Apple's advantage? It's ability to reject many good designs that stood before the final design.
Copyright © 2012 Robert Moll. All rights reserved.
As a patent attorney working with budgets, I initially found it a bit frustrating-- the invention kept evolving or even fundamentally changed between drafting sessions. But later I realized the same restless mind unwilling to live with a problem leading to the initial invention drove the inventor to improve the solution.
Tonight, Alan Cooper sent an article CNN Money 19 incredible Apple secrets revealed in court reminding me that the best inventors continually innovate. The article notes that the Apple v. Samsung trial has lifted secrecy surrounding Apple product development. It shows the final design of the Apple iPhone did not come after a few iterations. No, the photos and article show it was the multiyear major effort involving generation of many "good" intermediate designs that were rejected.
Apple's advantage? It's ability to reject many good designs that stood before the final design.
Copyright © 2012 Robert Moll. All rights reserved.
Sunday, April 1, 2012
Apple's Touch Screen Patent - Let Innovation Reign
Over the last decade, I have become a big fan of Apple products. They simply work; they don't make me think! In fact, we have five iPhones (will be six if son #2 gets straight A's this quarter), four Macbook Pros, a Macbook, and a number of iPods.
What's this have to do with patents? I don't like picking on Google but the Android software seems to copy some of Apple's software. In economics, we might say Google appears to be "free riding" on Apple's effort. You innovate since that is hard and expensive, you put it out in the public and I will wait to see if the market likes it, and if so, copy your innovation. In The Economic Structure of Intellectual Property Law, Judge Richard Posner and Professor William Landes state the consequence of giving expansive intellectual property protection is balanced by the potentially debilitating effect of free riding on the production of goods that involve a high ratio of fixed to marginal costs such as the iPhone. Thus, each time I hear Apple is successful in enforcing its patents on features that differentiate it, I think good for Apple (and me). Thus, I was glad to hear on Saturday that Judge Posner was siding with Apple for the most part on the touch screen patent lawsuit against Motorola Mobility.
Florian Mueller has a detailed account of Apple's victory here.
Apple Insider has a nice summary plus interesting comments here.
Copyright © 2012 Robert Moll. All rights reserved.
What's this have to do with patents? I don't like picking on Google but the Android software seems to copy some of Apple's software. In economics, we might say Google appears to be "free riding" on Apple's effort. You innovate since that is hard and expensive, you put it out in the public and I will wait to see if the market likes it, and if so, copy your innovation. In The Economic Structure of Intellectual Property Law, Judge Richard Posner and Professor William Landes state the consequence of giving expansive intellectual property protection is balanced by the potentially debilitating effect of free riding on the production of goods that involve a high ratio of fixed to marginal costs such as the iPhone. Thus, each time I hear Apple is successful in enforcing its patents on features that differentiate it, I think good for Apple (and me). Thus, I was glad to hear on Saturday that Judge Posner was siding with Apple for the most part on the touch screen patent lawsuit against Motorola Mobility.
Florian Mueller has a detailed account of Apple's victory here.
Apple Insider has a nice summary plus interesting comments here.
Copyright © 2012 Robert Moll. All rights reserved.
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