In Defense of the Patent System: How the Mainstream Media's Representation of it is "Broken"

by McDonnell Boehnen Hulbert & Berghoff LLP
Contact

The mainstream media continues its attack on the patent system.  This problem has become significant, because the average American does not appear to understand the purpose (and benefits) of the patent system.  With all of the misinformation being reported, it is no wonder that lay people have the perception that the patent system is "broken."  This blog has reported in the past about NPR's criticisms of the patent system, which have occurred on such shows as "This American Life" and podcasts as "Planet Money" (see "When NPR Podcasters Hit the Patent System").  We pointed out that one of the downsides of these various reports was that the NPR hosts and reporters did not appear to understand the patent system.  But, on the plus side (if it can be considered as such), these reporters did not hide the fact that they did not understand the system, and they certainly did not profess to be patent law experts.

WIREDA different tone has been taken in an article recently published on Wired.com by Patrick Hall entitled "Patent Law Broken, Abused to Stifle Innovation."  Mr. Hall's article is written from the perspective of an "expert" in the field, beginning with the axiomatic proposition that the system is not only broken, but that its abuse is stifling innovation.  However, a review of this article with even a minimal understanding of the patent system suggests that not only is Mr. Hall not actually an expert on the subject, but that he may even lack an understanding of even the most basic tenets of U.S. patent law.  This would not be so disconcerting but for the fact that his piece was published on a site that has a wide-reaching readership, and there was an indication or suggestion provided that the opinions expressed were just that -- opinions by someone who appears to believe that software patents are "bad."

To be fair, the focus of Mr. Hall's article is almost entirely on software patents (even though he does appear to suggest that mechanical patents, such as those that would cover automobiles, are absurd).  This software focus on its own might not be of much interest to the readership of this blog.  However, the provided "recommendations," and the criticisms provided as a whole, are not limited to software patents, and therefore could impact pharmaceutical, chemical, and biotech patents.  Moreover, the more public bashing that software and business-method patents take can only result in a detriment to the patent system as a whole, especially when this is the only exposure to the system that most Americans ever receive.

USD478999S1Mr. Hall's piece begins with the assumption that the patent system is broken.  However, any support for this proposition was anecdotal at best.  For example, the article complained that Apple received a patent for its glass staircase in 2003.  No explanation was given as to why such a patent was undeserved, but the clear implication was that there is a problem if companies are receiving patents on staircases.  No patent numbers were provided, so we are left assuming that the article was referring to Design Patent No. D478,999.  If Mr. Hall understood the difference between utility and design patents, it was not included in his article.  As explained on the Patent Office website, "[a] design patent protects only the appearance of the article and not structural or utilitarian features."  So, "a 'utility patent' protects the way an article is used and works (35 U.S.C. 101), while a 'design patent' protects the way an article looks (35 U.S.C. 171)."  Id.  Therefore, instead of the absurd proposition that Apple has patented the staircase, as the article suggests, Apple has instead simply protected the way its staircases look.

Mr. Hall's article also cited three "absurd" patents as evidence of a broken system:  the motorized ice cream cone, the banana suitcase, and the gas grabber (we are not supposed to ask about this last one).  There is apparently support for the proposition that these patents are absurd -- they were all featured on the "Patently Absurd" website.  But, Mr. Hall's article did not explain why he thought these patents were absurd (other than the fact that absurdity must be self-evident).  Looking at the first example, the motorized ice cream cone, it would appear at first glance that this is a patent to a novelty product.  But, is the article suggesting that novelty products are undeserving of patent protection?  And a simple web search reveals that at least someone was marketing such a device at some point (it was even featured on Katie Lee and Hoda, a video for which can be found with the same web search).  Is Mr. Hall suggesting a new category of inventions that are not patent eligible?  But fear not, if you want to create your own motorized ice cream cone, you can do so without threat of suit from U.S. Patent No. 5,971,829 -- that patent expired for failure to pay a maintenance fee around 2011.  Of course, this highlights one of the points that Mr. Hall's article fails to address -- obtaining and maintaining a patent can be an expensive proposition, and that if a patent is truly "absurd," it is unlikely someone is going through the cost and effort of obtaining or enforcing one.

US0549160AAs one of the most puzzling examples of how the "current" patent system is broken, Mr. Hall's article cites U.S. Patent No. 549,160, which issued in 1895 to George Selden.  This patent claims a "road-locomotive" with "a liquid hydrocarbon gas-engine of the compression type," or as the article puts it, an automobile.  As with the other examples, the article does not explain why a car should be underserving of patent protection.  But all is well, according to article, because Henry Ford allegedly successfully challenged this "absurd" patent in 1911.  Except that isn't quite what happened.  A simple Internet search that digs a little deeper than the Wikipedia page for Selden's patent reveals that his patent was never found to be invalid.  It is true that his patent was surrounded by controversy, but that was because his application was filed in 1879.  Mr. Selden was apparently able to keep his application pending for close to 20 years, until others had gotten into the business.  It appears that Mr. Selden was using a "submarine" patent more than half a century before Jerome Lemelson.  Mr. Selden's downfall occurred not because his patent was determined to be invalid, but rather the type of combustion engines that automobile manufacturers were using at the turn of the century were different than those use in 1879.  Therefore, Mr. Ford successfully appealed a finding of infringement.  Of course, such a "submarine" patent is not feasible anymore, both because almost every application is published after filing, and more importantly, the expiration date of patents are now limited by the filing date.  Therefore, under the patent system that actually exists today, Mr. Selden would have only have been able to assert his patent for a couple of years.  Not surprisingly, these subtleties are missing from Mr. Hall's article.

EFFMr. Hall's article culminates with "seven simple changes" to fix the patent system.  However, the article makes statements and assumptions about the patent system that are incorrect, but a layperson reading the article would have no idea that this is the case.  The starting point for these seven "fixes" were similar proposals for software patents offered by the "Defend Innovation" initiative of the Electronic Frontier Foundation ("the EFF").  Without taking a position on the EFF's proposals, we note that Mr. Hall's article's exposition on these fixes is not limited to software patents.  In fact, it is in the article's expounding of these proposals that the most confusion would be introduced for those unfamiliar with the patent system.  For example, the EFF has suggested that software patents be required to provide an example of the software code for each claim.  Patents already have a requirement that the claims be sufficiently enabled and described, in order to satisfy 35 U.S.C. § 112.  Mr. Hall's article, however, provides no indication that such a requirement exists.  Instead, the following question is posed:  "[d]o I deserve a patent for a hovering skateboard that I cannot create?"  The article gets the answer right ("Absolutely not"), but posing the question in the first place suggests to the reader that there is currently no enablement requirement.  Such a reader is therefore left with the impression that the Patent Office is issuing patents on "ideas," for which the inventor has no idea how to implement.

As another example, the EFF has suggested that all patents and licenses be made public.  In fact, such a proposal to require the recordation of real parties-in-interest has been included in many of the legislative proposals that have been recently proposed (see "Congress Continues Efforts to "Reform" U.S. Patent Law").  However, Mr. Hall's article suggests that this proposal is necessary because, without it, no one would know that a particular patent existed.  "Otherwise," the article asks, "how can innovators know if they are infringing on a patent."  Such reporting leaves the lay-reader with the impression that issued patents (or even published applications) are not publically available.  Not only is this incorrect, it is counter to the purpose behind the patent system -- to provide a period of exclusivity in exchange for the disclosure of an invention.

Many of the other proposals are simply unworkable or unpractical.  For example, the EFF had suggested a patent term for software patents no longer than five years from the date that the application was filed.  It is unclear how they derived that the ideal term for a software patents is five years, but at least the EFF recognized that this proposal might cause a problem with international treaties.  Mr. Hall's article ignored this complication, and instead expanded the original proposal by suggesting that "[p]atent lengths should reflect the speed of innovation within individual industries."  No guidance is provided, however, as to how this "speed of innovation" is to be calculated.  In fact, if his proposal was codified, then there is no reason that the converse should not be applied -- that industries with slower innovation speeds be given patent terms longer than the current twenty years from filing date.  More importantly, Mr. Hall's article does not take into account the logistical nightmare of how to categorize into which industry a particular patent falls -- and who would be responsible for that determination.

The final proposal in the article is perhaps the most ironic.  The article reiterates the EFF's request that Congress hold hearings to determine whether software patent are beneficial to society.  However, the starting point of this article already assumed this conclusion -- that the system is broken, and is being abused to stifle innovation.  If this is so, therefore, why does Congress need to waste its time with such a study?  Maybe the article's underlying premise is not as strong as it would lead the readers to believe.  The article refers to scholarly studies that apparently have concluded that patents do not, in fact, protect economically useful inventions.  However, no such study is cited or even mentioned.  Making such statements without providing support is irresponsible journalism.

Mr. Hall's article concludes with the statement that "[o]nly countries with enlightened legal institutions can sustain long-term economic growth, facilitate innovation, and benefit from the genius of resourceful creators."  On this point, the article is probably correct.  Nevertheless, this article provides mostly unsupported statements as fact, which leads the reader to assume that our country does not have such a legal institution.  There is nothing wrong with Mr. Hall having such an opinion, or even his putting his opinion on the internet.  However, when a media outlet such as Wired.com posts such an article, without disclaimer or qualification, it invites the reader to assume that the piece represents reality.  It is no wonder that public outrage over the patent system is mounting.  Instead, the mainstream media needs to apply a balanced approached to the issues, present the merits and weaknesses of both sides, and allow the readers to reach an informed conclusion for themselves.  Of course, this is probably too much to ask.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McDonnell Boehnen Hulbert & Berghoff LLP | Attorney Advertising

Written by:

McDonnell Boehnen Hulbert & Berghoff LLP
Contact
more
less

McDonnell Boehnen Hulbert & Berghoff LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.