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[Fsfe-france] [Fwd: [IP] Patently Absurd]

From: Laurent GUERBY
Subject: [Fsfe-france] [Fwd: [IP] Patently Absurd]
Date: Sun, 21 Aug 2005 10:00:44 +0200

Une opinion de Robert X Cringely sur la reforme des brevets USA.

Envoyé par Barry Ritholtz (blog @ http://bigpicture.typepad.com/)
sur la liste IP de David Farber (http://v2.listbox.com/member/?listname=ip)


Patently Absurd
Patent Reform Legislation in Congress Amounts to Little More Than a  
"Get Out of Jail Free" Card for Microsoft
By Robert X. Cringely

Late last month, shortly before the U.S. Congress shut down for its  
summer recess, the Senate Judiciary Committee's Intellectual Property  
subcommittee held an unusual hearing -- unusual because the only  
committee member attending the hearing was the chairman, Orrin Hatch,  
a Republican from Utah. Why would such a prestigious committee hold a  
hearing in Washington attended by only one member? To slam through  
some controversial legislation, of course. Senator Hatch was trying  
to pass a new law "reforming" the U.S. patent system and apparently  
felt it would all go much more smoothly without the presence of the  
other committee members. And it might have gone smoothly, except  
someone in the press noticed the unusual hearing and decided to  
attend, essentially scotching the intended markup of the bill a week  
later and passage just as an unwary Congress was heading home.

Lord save us from patent reform.

This is another in my occasional series of columns on "innovation," a  
term that -- at least when used in the computer and software  
industries -- generally means "creative theft of ideas by big  

There are several forms of intellectual property protected by U.S.  
law. Among these are patents, trademarks, and copyrights. The goal of  
all three forms of protection is to encourage hard work through the  
granting of some economic exclusivity, and thereby helping the nation  
by growing the economy and through the good works made possible by  
new inventions. Trademarks reduce ambiguity in marketing and  
promotion. Copyrights protect artistic and intellectual expression.  
And patents protect ideas. Of these three categories of intellectual  
property, the ones recently subject to reform efforts are copyrights  
and patents, and each of these seems to be headed in a different  
direction, though for generally the same reason.

Copyright law is being tightened at the behest of big publishers and  
especially big record and movie companies. The Digital Millennium  
Copyright Act, for example, makes it a crime to defeat copy  
protection of CDs and DVDs, thus helping to preserve the property  
rights of these companies. At the end of some artistic productivity  
chain, it is supposed to protect the rest of us, too, most notably by  
encouraging the record and movie companies to make more records and  
movies, which we will in turn be discouraged from copying illegally.

Patent reform works the other way. Where we are tightening copyrights  
to help big companies, we are loosening patents, also to help big  
companies. Certainly it isn't to help you or me.

Do you feel helped by patent reform?

The bill at hand, which will take another shot at passage after the  
current Congressional recess, is intended to discourage frivolous  
patent lawsuits, which are reportedly ruining the days of big  
companies all over America, thus denying the rest of us the fruits of  
those patents -- new stuff. That would be fine if most of our new  
stuff came from big companies, but it doesn't. Most patents aren't  
issued to big companies, but to smaller companies and to individual  
inventors. Patent reform for the most part won't help those groups  
and will, in fact, hurt them.

If patent reform will hurt most of the people who receive patents,  
why are we doing it?

Good question.

Patent reform appears to be based primarily on the idea that big  
companies invent useful stuff that needs protection while smaller  
companies and individual inventors use the patent system to suck  
revenue out of big companies through frivolous patents and frivolous  
lawsuits. Of course, it isn't at all clear that this assumption is  

The primary principles of patent reform are switching the U.S. system  
from "first to invent" to "first to file" by replacing legal  
challenges to patents with a more administrative challenge process,  
and by practically eliminating injunctions through which a patent  
holder forces an infringer to stop using his intellectual property.

Much of the rest of the world already uses "first to file" patent  
systems. Of course, much of the rest of the world also ignores or  
gleefully violates patent law. "First to file" gives the advantage to  
any organization that has a good administrative system in place.  
Absent-minded inventors lose in this system, which also encourages  
patenting anything and everything just in case. We can see this in  
recent Microsoft patents, for example, like 20050108349 -- "Business  
inquiries and operations using messaging service" -- which seems to  
cover looking up a number in the telephone directory. Does this  
qualify as "innovation?"

"First to file" is supposed to be good for you and me because it  
reduces frivolous lawsuits by people who may think they actually  
invented looking up numbers in the phone book before Microsoft  
invented it. But, hey, isn't a patent supposed to be "non-obvious,"  
which would make looking up numbers in the phone book unpatentable?

It's just my opinion, but "first to file" looks like a good way to  
screw small inventors, of which I know quite a few.

Moving to an administrative challenge system within the patent  
office, rather than just filing a law suit in court, is supposed to  
both make patents better and cheaper. It is supposed to make them  
better because expensive lawyers are eliminated from the process,  
thus allowing more challenges to be filed and improving the overall  
quality of issued patents. There are only two problems with this  
theory, and those are the false ideas that lawyers will be  
eliminated, and that money will be saved.

Big companies with patent departments will continue to staff those  
departments with lawyers, whether they are called that or not. Little  
companies and individual inventors without patent departments tend to  
be represented by lawyers who work on contingency -- who accept the  
financial risk of pursuing the case in return for a share of any  
award the inventor gets in compensation for the infringement. While  
there are some lawyers who are the patent equivalents of ambulance  
chasers, most lawyers won't take patent cases they aren't pretty  
darned sure they can win, which would seem to not be frivolous cases  
at all.

So moving to an administrative challenge system eliminates lawyers,  
yes, but only for small inventors.

Finally there is the elimination of injunctions except under extreme  
circumstances. I find this part of the bill especially interesting  
because it seems to effectively allow infringement under almost any  
circumstance, reducing what is supposed to be a crime into more of a  
forced license -- forced on the patent holder. If a company infringes  
my patent and I can't get an injunction prohibiting them from using  
my intellectual property, that means anyone can use any patented  
technology, and all that's left to be worked out is the license fee.

I don't want to be too petty about this, but what if I, as the  
inventor, simply don't like you, the infringer? What if I fear you'll  
be using my very peaceful invention to make weapons of mass  
destruction? Can't I stop you from using my property? Under the  
proposed law, I can only do so if your infringement will effectively  
put me out of business.

Under this bill, that which doesn't kill us continues to annoy.

The point of all this reform, it seems to me, is to make it harder  
for small inventors to make a living. If they are all thieves, maybe  
that's as it should be. But what if they aren't all thieves? What if  
they actually invent most of the stuff we value? Then all of us are  
being ill-served by this legislation.

Microsoft loves it, of course. Under the proposed law it is almost  
impossible to get the treble damages that are at the core of the  
contingency lawyer-client relationship. That, alone, drops  
Microsoft's liability by a factor of three, from around $20 billion  
down to $7 billion or so from the dozens of patent infringement cases  
currently pending against the company.

Yes, Microsoft may well be a prime target for frivolous patent  
infringement suits, but Microsoft historically has also shown itself  
to be a consistent and willful patent infringer.

In short, the bill is bad. It reflects the worst kind of special  
interest law-making that hurts us all. And I mean REALLY hurts us  
because it will only act to discourage inventors. Record and movie  
companies beating-up on music and film pirates don't save or cost  
lives, but discouraging new medical inventions literally does cost  

That ought to be as obvious as looking up a number in the phone book.

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