E-Commerce Times Talkback
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As the recent BlackBerry case focused the world's eyes on the arcane field of patents, I was reminded of the 1999 Amazon.com "one click" case, which caused so many to condemn the U.S. patent system. At that time, critics called the system "broken" and a "disincentive to innovation." Now, the system is under attack again, merely because our Blackberries were threatened. The Wall Street Journal jumped onto this bandwagon blaming unscrupulous lawyers and their clients for conspiring to "hijack" the U.S. patent system.
Thank you for your voice of reason.
Like it or not this time they will win, and the patent system will be changed. The main goal of this thrust is to increase the cost of obtaining a valuable patent.
Who exactly gains from this legislation?
Fortune-100, international high-tech companies. They benefit because they won't have to worry so much about "borrowing" the technologies that someone else thought of. Whenever a useful technology emerges from the bleeding edge of fresh junk, they can just reexamine the associated patent to death instead of paying the inventor(s) their investment costs (let alone enough to make them as well off as they would have been had they not left their day job). The can also cut back on the research costs. Why bother putting dough into something that might pan out when you can sit back and rip off what the customer is actually buying? First to file increases the patent latency. Ideally, by the time the patent issues the technology will be obsolete.
Pharma. They benefit since they will be able to reexamine to death anything useful that comes out of government labs, universities, and small tech. startups. Congress tosses them some bird-flu dough to make them more agreeable.
The Lawyers. Post-grant opposition means anyone can reexamine the 3% patents that end up having value. The cost for such a reexamination will probably be about the cost of the filing fee, or about $1,000. The existing cost of fighting a patent is about $1M, or about 1000 times larger. That suggests companies that wish to steal the hottest technologies from the people who invented them will just reexamine a patent to death (up to 1000 times!) until all of the claims get rejected instead of messing around with court. First-to-file makes them earn top dollar each time someone comes up with a half-baked idea.
Patent examiners. First-to-file means they will be bombarded with junk. Their salaries can only go up as new hires are persuaded to help deal with the increased load.
Patent searchers. They could see easily see a 10x increase in business, since the basis for most patent reexaminations will be prior art. The new source of reexamination revenue will increase the value or prior art intelligence to the extent that it will make sense to pay these guys to look in people's addicts and basements.
Independent inventors. These people should care, but the truth is that they have no measurable opinion. Only 3% percent of patents ever pay for themselves, and the statistics for independent inventors aren't that much better. So most independent inventors dream of making money yet struggle to do so. This won't change them for perhaps ten years. That is about how long it will trickle down to them that the odds of successfully going from idea to profit have dropped to only 0.3% instead of the "whopping" 3% it is now. A given independent inventor doesn't typically know how bad the odds really are for them until years after they've quit their day job. They are way too busy working on the latest prototype and trying to make next month's payments to care about some senators talking politics. There appears to be some desire for people to quit their day job that has nothing to do with the lure of future profit, so this is another reason they won't have a measurable opinion against the reforms. Besides, the legislation will have no effect upon almost all of them (around 97%) that don't patent something valuable. So they will still be able to show their patent certificate to kids.
Venture capitalists. They can't really speak since they have their tongue in each honey pot.
Senators. They are making out, don't you worry. You'd have thought by now that each congressman would have a PayPal link with a webpage. Each "donation" over $100,000 you get to state what laws you want written. Donations above $1M allow you to submit the exact bill text you want a subcommittee to approve.
The media. Well by now they are all owned by big corporations, so it doesn't really matter if they print what is in the public's interest. Instead they print the corporate spoon fed headlines about patent trolls shutting down Bbay and Blackberry. You know you can trust the media when the best criticism of the corporate ownership of Congress needs to be hidden in movies like "V for Vendetta". Even though about 90% of the people liked that movie, the top three US newspapers pointed their thumbs down in the hopes of not offending their true bosses. Ironically, there is now a nation television show purporting to be about inventors. But when you look more closely at it, you see its main purpose: to poke fun at inventors. In a short elevator pitch, inventors will typically spend about a fifth of the time discussing patents, since it is the key to their dream of making it. Yet the only mention of patents in the series so far was one or two lines like, "Patents mean nothing! Anyone can get a patent." Clearly this show was carefully edited to be compliant.
So everyone one wins? Almost. The loser is the average American. In a decade or so, the US will no longer be viewed as the primary source of new technologies. Instead, that label will go firmly to Asia along with our jobs. If you like Chinese food, even that isn't so bad.
BYW, the NYT is a another puppet of a country whose first letter is I, so that is why they wrote that.