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

by McDonnell Boehnen Hulbert & Berghoff LLP

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 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 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.

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