The Whims of Prejudice Masked in Obscurity

The Register–an online IT magazine–today published a column arguing in favor of plain-language patents.  The column argues that the notion of patent courts, presided over by technically savvy judges, is unreasonable (even undemocratic!).  I agree on principle.  But the argument has holes.

There is likely merit to the claim that an uneducated jury can be won over by an impressive-sounding display of technical jargon.  But how does that make one patent more enforceable than another?  And how does it protect one party’s innovation while still promoting further innovations by others?

As the column notes, the fundamental basis of the patent is the grant of exclusive economic rights in exchange for disclosure of innovations.  The purpose is not to discourage further innovation, but to promote it.  When a patent dispute becomes an argument over which party can better use cutting-edge terminology to describe his patent, it has abandoned its purpose.

The column from The Register references, as a counterpoint, an article from The Economist advocating the creation of patent courts.  But The Register takes the comment out of context.  The Economist makes a key distinction: it argues against the proliferation of patents.  It advocates patent courts, presided over by “technically minded judges,” as a method to reduce the number of valid patent claims, not to further enforce arbitrary lay interpretations of what is and isn’t protected.

As Steve Jobs famously said of Apple (and as he is quoted in The Economist article), “we have always been shameless about stealing great ideas.”  For great ideas that can be further improved, such theft should be encouraged.

Article from The Register:  http://www.theregister.co.uk/2012/09/19/mailbag_patents_let_people_decide/

Article from The Economist:  http://www.economist.com/node/21561888

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2 thoughts on “The Whims of Prejudice Masked in Obscurity

  1. In IP last night we discussed how the AIA is supplanting patent law in the United States that made it permissible to steal technology unpatented from other countries and patent it here. While the globalists in the classroom were shocked, it occurred to me that the patent law we have comes from 1952, which was right in the middle of the Cold War. Due to that clause, we were able to stay relevant in the Arms Race.

    Do you think we would be able to do the same now with our “first come, first serve” system?

  2. Some commentators have speculated that Apple was successful in many of their recent claims because the patent claims by Samsung were “too complex” for the jury to understand and Apple’s claims were more colloquial in language. It is possible that by decreasing the “technical jargon” in a patent you will actually see the opposite result from what you intend, i.e. the jury will side with the party who “dumbs down” the science into everyday terms regardless of the merits. There is a reason that most patent prosecutors and USPTO examiners have advanced degrees. The material is complex and detailed. Converting the complex into simple terms often does not do justice to the invention and could result in more patent infringement litigation.

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