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Comment submitted by Stephen Wren

Sazef

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All this talk of a need for patent “deform” is but a red herring fabricated by a handful of large tech firms as a diversion away from the real issue...that they have no valid defense against charges they are using other parties' technologies without permission. It’s not about reforming the system. It’s about legalizing theft! The objective of these large firms is not to fix the patent system, but to destroy it or pervert it so only they may obtain and defend patents; to make it a sport of kings. Patents are a threat against their market dominance. They would rather use their size alone to secure their market position. Patents of others, especially small entities, jeopardize that. For example, the proposed change to eliminate the use of injunctions would only further encourage blatant infringement. Any large company would merely force you to make them take a license. They would have little to lose. Everything would be litigated to death -if a small entity can come up with the cash to pursue. That's what these large multinationals are betting against. While some of these large firms pushing for reform may own a lot of patents, the fact is more often than not such firms find themselves as defendants in patent cases. Many of their patents neither they or anyone else use. For them patents exist mostly for defensive use. Microsoft is on record as stating that. Actually, even the present threat of injunction is not sufficient to deter would be infringers. ...

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Publié par	Sazef
Nombre de lectures	31
Langue	English

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All this talk of a need for patent “deform” is but a red herring fabricated by a handful of

large tech firms as a diversion away from the real issue...that they have no valid

defense against charges they are using other parties' technologies without permission.

It’s not about reforming the system. It’s about legalizing theft!

The objective of these large firms is not to fix the patent system, but to destroy it or

pervert it so only they may obtain and defend patents; to make it a sport of kings.

Patents are a threat against their market dominance. They would rather use their size

alone to secure their market position. Patents of others, especially small entities,

jeopardize that. For example, the proposed change to eliminate the use of injunctions

would only further encourage blatant infringement. Any large company would merely

force you to make them take a license. They would have little to lose. Everything would

be litigated to death -if a small entity can come up with the cash to pursue. That's what

these large multinationals are betting against.

While some of these large firms pushing for reform may own a lot of patents, the fact is

more often than not such firms find themselves as defendants in patent cases. Many of

their patents neither they or anyone else use. For them patents exist mostly for

defensive use. Microsoft is on record as stating that.

Actually, even the present threat of injunction is not sufficient to deter would be

infringers. Just look at the Blackberry case. RIM had to have known they were infringing

or likely so and yet they still held out to the bitter end. They took the nuclear option and

guess what...they got nuked. If anything, we need harsher penalties to force large

aggressive firms into thinking twice before thumbing their nose at small patent holders. I

recently noticed one country is considering jail time for infringers. That sounds like a

great solution to me.

The problem is that companies who are using your technology aren't so genteel as to

stop using it merely because you politely ask them to do so. Invention is rough and

tumble. The fact is, a patent is merely a right to sue someone to not make your

invention without permission. Unless you have the will and money to sue them, they will

turn a deaf ear. Unless you have a good patent, you will not get the money. It's sad, but

it's the reality of business. All this talk about patentees gaming the system with bad

patents is then a hoax. Why do these detractors never identify these supposed bad

patents? Surely if they exist they can be identified?

If anyone is gaming the system, it is large multinationals. After losing in court they

coerce the Patent Office into conducting a reexamination on the patents they have

been found guilty of infringing. That is pure abuse of process.

The fact is, there is no systematic abuse of the patent system by patentees which

would require an overhaul of the system. To the contrary, there is a reason why the

patent system works the way it does. We didn't get here by accident. That's because of

past abuse of the system by large companies who used their wealth to give small

entities the run around and make a sham of the system. Take a look at the

RCA/Armstrong case of years ago on FM radio as described in Tom Lewis's "Empire of

the Air", chapter 10, p313 and p356. According to Lewis, RCA ruined Armstrong with a

legion of attorneys. They so destroyed Armstrong and made a mockery of the patent

system that he committed suicide. Part of RCA's outrageous conduct was to string

Armstrong along making him think they were interested in his invention only to copy his

work and file patent applications of their own. Later they then entered into an

interference against him at the patent office. RCA committed similar abuses of the

patent system against electronic television inventor Philo Farnsworth according to Paul

Schatzkin’s "The Boy Who Invented Television".

As to the quality of patents; based on the 2008 Patent Litigation Study by Price

Waterhouse Coopers, well over half of all litigated patents are upheld in court. That's at

least balanced and suggests there is no problem with patent quality. Further, seldom do

cases ever make it to trial as the parties settle out of court. The facts do not support the

contention that there is a patent quality issue. Still, with almost half a million patent

applications filed each year a few are bound to be issued that shouldn't. Many patent

system bashers like to cite silly patents such as a cat exercise patent. However, rarely

are they ever an issue because you can't enforce them without money and you wont

get the money unless you have a good patent. All inventors can do with such patents is

paper their bathroom walls. Keep in mind it costs the patent holder about as much in a

patent suit as it does the accused infringer. Often times it costs more because in

multiple defendant cases infringers will band together to share costs. Investors are not

stupid. If they don't have confidence in your patent, they will not invest. It's that simple.

Bad patents do not get funded.

If there is a problem with the patent system, it is not that patents are issued too hastily

but rather that many are issued too slowly. Witness the current backlog and pendency. I

for example have applications with a pendency of over 15 years! In one instance it took

3 years just to get a first office action. With this kind of pendency by the time an

inventor gets their patent their technology is of no value. That is the problem everyone

should be focused on -not this imaginary issue of patent quality trumped up and

propped up by large multinationals as a way to stifle innovation and further cement their

market control. Can you say "monopoly"?

Further, certain large multinationals speak of the need for harmonization. Why is that

necessary? If others are backward would we want to modify our system just to match

theirs? When one looks at the efficacy of patent systems throughout the world the US

patent system has produced far more innovation than those of other countries over the

last several decades. If anything, other countries should be changing their systems to

get inline with ours. Rather what's going on is these large multinationals and those they

have duped are using specious arguments to get what will benefit them personally. The

rest of the country be damned.

Ours is a finely tuned patent system developed over 200 years which has led to US

dominance in technology. We had better think carefully and move cautiously lest we

create more problems than we solve and reap unintended and unforseen

consequences.

All this is then not about present abuse of the system by inventors or a need for patent

reform, but rather systematic past and present abuses by large companies. Witness the

present conduct of firms like RIM in using the courts to drag out a final verdict. The

judge in that case remarked about how delays frustrate justice. Also, look at the

exploitations and predations of Medtronic against inventor Dr. Gary Michelson as

reported in the New York Times.

Even worse; not only is there no need for reform, but the proposed changes will actually

damage our functional system. The proposed changes:

1) Increase the costs to small entity patent holders, often by at least an order of

magnitude.

2) Shift costs from large corporate infringers to the small entity.

3) Open new causes for large entities to litigate.

4) Open our patent system to a multitude of patent system abuses common in Japan

which very much favors big companies.

5) Delay the possibility of start-ups obtaining investment capital by effectively increasing

pendency.

6) Increase the power and potential abuse of such power by the USPTO which has

7) Lowers the potential recovery for a patentee by at least one to two orders of

magnitude.

8) Will not decrease the role of attorneys or litigation, but rather will increase their role

and legal expenses in a multitude of ways.

9) Will lead to much higher filing rates for patents which will further bog down the

USPTO.

When corporate America agrees to not use our inventions without consent, American

inventors and small entities will agree to stop suing them.

Sincerely,

Stephen Wren

become increasingly politicized.

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