Archive for miscellaneous
Abraham Lincoln said that the patent system “added the fuel of interest to the fires of genius.” Today the fires of genius and the fire of innovation itself is getting doused with something less helpful than fuel. These fires are being cooled and, in some cases, extinguished with harsh attacks on the IP rights that once enabled and motivated lone inventors and small businesses to take the fruits of their genius to the market.
The owners of small businesses, the people who generate most of the innovation and business growth in the United States have good reason to be worried. Their ability to attract funding through valuable intellectual property is being compromised. Their ability to protect their products and innovations from the power of corporate giants is being whittled away. This has come from many quarters, but there is a widespread anti-patent movement driven by politics and misinformation. It’s the bitter fruit of a bitter anti-property rights movement that exaggerates the threat of a few bad actors to justify widespread weakening of property rights in ways that will hurt the economy and our society for years to come.
We have seen a recent series of Supreme Court cases that have made it much harder to obtain patents and enforce them. We have seen massive changes in US patent law that make it easier to invalidate patents after they are granted and make it harder and more costly to stop infringers if your patent survives. Now the bogeyman of “patent trolls” is held up as a threat to America that requires more sweeping “patent reform” to make it even harder to enforce a patent, and it looks like both parties are united in a quest to do “something big” to shake up the IP rights that helped drive the American economy for so many decades. Corporate giants benefit from this reform as it clears away the annoyance of other people’s IP rights standing in the way of their marketing muscle. But the economy as a whole and the rights of many are hurt in this process this amplifies innovation fatigue .
Several recent articles highlight just how serious the problem has become. Louis Carbonneau in “Toxic Asset: The Gradual Demise of the American Patent” (IPWatchdog.com, December 10, 2014), surveys the radical changes in the past two or three years:
On the judicial front, in 2014 we saw no fewer than 5 Supreme Court decisions going against patent holders on the various subjects of obviousness (a key test for patent validity), what constitutes “abstract ideas” (which now undergo a more stringent test for patentability), business method patentability, indefiniteness (how you construe claims), reasonable royalty (how you calculate damages), willful infringement (how you punish the “bad actors”) and fee shifting (making losers pay for winners legal fees). All of these decisions have collectively made it harder for patent owners to: i) maintain the validity of duly issued patents (previously presumed by law), ii) pursue infringement claims, ii) prove damages (let alone treble damages), iv) have open discussions with potential infringers prior to litigating, and have left the unsuccessful patent owner at risks of paying millions in legal fees to the other side if the judges so decides.
Parallel to judicial reform at the federal courts, recent US patent reform with the American Invent Act (AIA) introduced a new post grant review mechanism called Inter Partes Review (IPR) which allows a party to challenge the validity of any issued patent before the Patent Trial & Appeals Board (PTAB). Strangely, despite the PTAB being an emanation of the same USPTO that delivered all these patents in the first place, there is no longer a presumption of validity before the PTAB for the patents being challenged while other rules make it easier to invalidate patents based on prior art.
Finally, on the political front, in 2013 the US House of Reps. passed the Goodlatte bill, which would erode rights conveyed to all patent holders despite being primarily directed at NPEs. It is now expected that the new Republican led Senate will revive the bill -currently on hold- in early 2015 and, with a rare showing of bipartisanship from the White House, it is expected to be signed into law. At the same time, 27 US States have passed or are in the process of passing laws that make it harder for people to assert the patents they own.
Carbonneau goes on to explain that in recent Federal Circuit cases, patent owners are being crushed, and in Inter Partes Review (IPR) cases before the USPTO, nearly 80% of the owners of challenged patents are being told by the USPTO that their patents are not valid over the prior art that the USPTO itself supposedly considered before granting the patent in the first place. Carbonneau puts it rather wryly:
The most interesting statistics come from the PTAB [the USPTO’s Patent Trial and Appeal Board, which processes IPR cases] because it only focuses on validity issues based on prior art; the very same prior art patent examiners are supposed to have found and analyze prior to issuing a patent. Since patents going through IPRs are usually the same ones that being litigated, you would assume that owners did a lot of due diligence before investing in a costly patent lawsuit. Well, the PTAB is declaring 77.5% of reviewed patents invalid! And this is not limited to “abstract” software; patents related to biotech and pharmaceuticals, medical and mechanical devices, are being invalidated at an even higher rate! Remember, this is an offspring of the very same agency that inventors paid thousands of dollars in the first place to review applications and issue their patents. Now, after having to pay a quarter to a half million dollars in legal fees (average cost of an IPR procedure for a patent holder), the same agency is telling patentees nearly 80% of the time: “Very sorry we made a mistake; we would not have allowed your application had we looked more carefully for existing prior art. And no, there is no refund available.”
Personally, I cannot think of any industry that could survive more than a month with a nearly 80% defective rate, let alone by forcing you to spend a fortune for the “privilege” to confirm that indeed your title was invalid in the first place! Only a government can come up with such a broken system and get away with it.
The impact of these anti-patent efforts has been a surprisingly sudden break from the trend of increasing IP litigation, with litigation in 2014 down about 13% from the previous year according to a new 2015 PwC report on patent litigation. The problem of explosively increasing patent litigation, a common excuse to justify the slashing of patent rights, is not supported by the data.
Richard Lloyd, writing for the IAM Blog, draws this observation from the PwC report:
Of these three classes [of patent litigants considered], NPE [non-practicing entity] companies have been successful 31% of the time in patent cases brought since 1995; this compares with a success rate for universities and non-profits of 48% and a lowly 18% for individual inventors. Individual patent owners also do far worse with damages pay-outs, getting a median award of $3 million compared with $11.5 million for company NPEs and $16.2 million for universities/non-profits.
There could be many reasons for individual inventors doing relatively badly. Although the PWC study doesn’t provide any, it’s easy to speculate that small inventors may have lower average quality patents to begin with, while they probably don’t have the same kind of litigation savvy as other NPEs and are much less likely to have access to the same kind of litigation expertise that larger, better funded patent owners can turn to.
But what PWC’s numbers also strongly suggest is that the US patent litigation system is strongly stacked against small, patent owning entities. Bearing this in mind, it is worrying that the main packages of reform proposed in the House of Representatives (the Innovation Act) and the Senate (the PATENT Act) are only going to penalise them further.
Lloyd notes that potential irony now that many lone inventors, recognizing that they have little chance of winning and have almost no chance of affording the punitive legal bills they may face if they sue and lose, may be more likely to turn to NPEs (“patent trolls”) for help as the most practical way to realize any benefit from their work.
There is a need to rebuild an innovation climate in the United States, starting with educating our leaders about the need for IP rights and the value of patents. If we don’t teach this lesson from within, it will eventually be taught rather loudly from without, for Europe and China are both moving to strengthen IP rights and strengthen IP enforcement. Europe’s Unitary Patent system could be a boon to IP there, though much remains to be seen, but the changes in China are strong and dramatic. That nation has gone from no patents and no IP system in the early 1980s to the world’s biggest source of IP generation and IP litigation, with many changes steadily strengthening the nation’s IP system. There is a long ways to go for China still and there have been some setbacks, but at current rates we can see China becoming a leading source of global innovation while the US loses its lead.
Will the flames of innovation be largely quenched in that nation? Much depends on what we do with IP rights now, the rights that will shape our culture and economy for decades to come. May the fires of genius be encouraged with something other than the cold water Congress and Courts have been sloshing.
In a few days, I’ll be speaking about IP and innovation in China at the RISE 2015 conference in Miami, Florida, sponsored by INDA (a professional organization for the nonwoven fabrics industry). In my presentation, I’ll be sharing my “Dangerfield Theory” of IP and innovation in China. The Dangerfield Theory is based on comedian Rodney Dangerfield, who famously and repeatedly complained that he got no respect. China, in spite of remarkable advances in IP and innovation, continues to get no respect. Like Rodney himself, China is also a heavyweight, now leading the world in patents and IP litigation, and leading in the pursuit of many key technologies. Their innovation and IP is no laughing matter, but continues to just get no respect. This make China like Dangerfield, and for those companies and nations that ignore the threats and opportunities China creates, Chinese IP and innovation will also become “danger field.” Ignoring this field of danger and opportunity is foolhardy. It’s the kind of sleepy, lazy response we seen when a company or nation is beset by innovation fatigue.
The tendency of Chinese IP and innovation to be invisible to the West is an issue I raised in 2011 right after the Thompson Reuter Top 100 Global Innovators report for 2011 included nothing from China, Taiwan, or Hong Kong in its list of 100 top innovators based on international patent filings over the past three years. I was astonished at how Chinese IP could be so invisible and overlooked, given that Foxconn/Honghai Precision, the Taiwanese and Chinese partner of Apple, compared to Apple itself actually had 3 times as many US patents in the time period of interest. Honghai had roughly 50 times as many US patents field as some companies that made the list. Other heavy international filers like Huawei, ZTE, and Lenovo were also neglected.
I contacted Thompson Reuters to complain, wondering also if they had made errors in their search or forget to include Honhai Precision in their search terms. I was told that they had done the analysis accurately, relying on a proprietary algorithm that requires a company to file in the US, the EPO (Europe), and Japan for a patent to count as an “international” patent. This definition tends to discriminate against Chinese IP, in my opinion, for Chinese companies, when they seek international protection, are usually content with IP in China and the US, plus some other specific nations, but tend to do relatively few filings with the EPO or with Japan. Japanese companies naturally file their first, just as Chinese companies file first in China. Given the high political tensions between Japan and China, and the relatively small market it is for Chinese companies, the motivation to file in Japan is small, regardless of the quality of the invention. Insisting on filing in Japan rather than China puts China at a great disadvantage and favors the many Japanese companies that make the list. Requiring that a patent be filed in the EPO and Japan in addition to the US sets a very high bar that does not properly reflect whether an invention is good enough to be pursued with international IP.
In 2012, the Thompson Reuters Top 100 Global Innovators report still had nothing from China. Its 2013 report finally mentioned Taiwan, but not Honghai/Foxconn. Only the Taiwanese semiconductor giant TMSC broke into the top 100. But the latest report from the end of 2014 finally mentioned a mainlaind Chinese company: Huawei. It’s about time. It’s not like Huawei just barely broke into the ranks of companies pursuing international IP. For several years they, like ZTE, have been in the top 5 international filers, according to the World IP Organization which administers PCT (Patent Cooperation Treaty) filings. Huawei is actually the world’s #1 international filer and has been for some time. Looks like they managed to barely break past whatever algorithmic blinders Thompson Reuters has, and for that tiny bit of progress, I guess we have to congratulate the folks at TR.
My soft and hesitant congratulations, though, may not be heard amid the roar of complaints that TR is facing for its related report, China’s IQ (Innovation Quotient), which praises China for its rapid rise in innovation and patent filings (in spite of meagre recognition on the Top 100 report). Some loud voices immediately complained, reminding us that Chinese innovation is weak and most of its patents are low quality. On Dec. 13, 2014, the influential magazine, The Economist, ran an editorial, “Patent fiction: Are Ambitious Bureaucrats Fomenting or Feigning Innovation?,” criticizing TR for their positive report on China and reminding us that China’ does not file as high a percentage of international patents as Japan, and suggesting that Chinese innovation and IP is “feigned” by bureaucrats and not driven by real inventions from real innovators. Still no respect!
Yes, there is a problem with poor quality patents in China driven by tax breaks. But that is changing as companies increasingly look to patents as strategic tools for the future, and are striving to increase quality. The quality problems in China may more severe than they are in the US, but the quality is improving, and expensive international filings are increasing, with China now #3 in the world, ahead of Germany, and likely to overtake Japan in a few years.
It’s true that Japanese patents are much more likely to be filed overseas than Chinese patents (something like 30% for Japan versus 5% for China), but this is not necessarily a reflection on the quality of the patent. The economic value is also an important issue. Japan is a small market. Its businesses prosper by selling products to many large foreign markets like the US, Europe, and China. There are strong economic reasons why Japanese companies would seek foreign patent protection. China, on the other hand, represents a huge and growing market. Apart from manufacturing for foreign companies using foreign IP, Chinese companies producing and creating their own products tend to find the Chinese market to be a big enough opportunity to keep them busy for years to come, and rely much less on exporting these to the confusing and uncertain overseas markets in the US and Europe. The economic incentives to seek IP overseas is less for many Chinese innovators than it is for Japanese innovators, and naturally we can expect foreign filings to be somewhat diminished, even when the invention is of high quality.
There is a tsunami of quality IP and advanced innovation coming from China. China is learning and rapidly improving its approach to IP. Those who continue to ignore the threats and opportunities coming from this very change will find that the “Dangerfield Theory of Chinese IP and innovation” ultimately means the joke will be on them.
At the Marcus Evans Innovate 2014 Conference in Shanghai today, I met Rosalie Wu, the head of marketing in China for the rapidly growing startup, Uber. Rosalie was Uber’s first hire in China and exemplifies the energetic, entrepreneurial spirit that is driving Uber to global success. She spoke about the development of Uber’s innovative business model and the many innovations they continue to add in their unique approach to “glocalization,” wherein a company going global adapts its products and business model to the unique constraints and opportunities of each local market. I see Uber at the poster child for sound and innovative glocalization.
Uber began when one of its founders and first CEO, Travis Kalanick, attended Le Web in Paris in 2008 and struggled to get a cab in snowy weather. He realized there had to be a better way to use the free market to solve the basic problem of getting a ride. His passion for solving this problem resulted in forming a San Francisco start-up that began in 2010 with a mobile app for ride sharing in San Francisco. Today they offer a refined and clever business model with services in over 200 cities. Beijing was #200, and Uber is marching rapidly across China and other parts of the world. Rosalie’s enthusiasm for Uber is contagious and really stirred the audience here at the Hongqiao Marriott Hotel.
Uber’s business model innovation includes systems for registering, insuring, and rating drivers. It offers flexible pricing that helps tap the power of the free market much better than conventional taxi pricing and taxi systems can. With Uber you can select quality drivers and have simple, positive experiences getting to where you need to go when you want to be there. The business model is being extended with many other innovations such as delivery of products and even services (in China, they have even offered the service of having a traditional Chinese lion dance sent to be performed in your office). The innovate their offerings to meet local needs and adapt to local regulations and customs, while finding clever ways to continually make people’s lives better. This will inspire the competition to do more and bring ongoing innovation that will benefit us all. Amazing what a bad snowy night can do when an innovator is around.
Less than a year ago, Uber was valued at over US$3.5 billion. A few months ago in 2014, Uber was valued at around $17 billion. This is the power of doing something that brings people together in new ways.
Uber has faced and overcome a host of innovation barriers. Funding challenges, regulatory burdens, and stiff competition. But they have forged ahead with a relentless focus on making life better for its customers with green, energy saving, disruptive innovation . May the path before them remain wide open. Kudos, Uber!
The hysteria against software patents continues around the globe, threatening to hinder the most important aspects of the knowledge economy in favor of clinging to old industrial age paradigms. The real problem with software patents has been the large number of poor quality patents issued by the US Patent and Trademark Office due to bad searches, poor training, and poor quality examination in general. These problems are not solved by banning certain classes of patents, but by improving the Office and correcting the huge siphoning of funds from USPTO coffers that Congress has done to fund their endless spending sprees. But in backlash to the few outrageous examples of overly broad patents that have been issued, ill-informed mobs have been stirred up to condemn software patents, business method patents, and sometimes patents in general, not recognizing that intellectual property rights are essential for providing the incentives required for inventors to make the sacrifices and investments required to bring inventions to life.
A recent development comes from New Zealand, where anti-patent zeal has resulted in a law that outright bans computer-related patents altogether, or so it seems. Here is the text of the law:
(1) A computer program is not an invention and not a manner of manufacture
for the purposes of this Act.
(2) Subsection (1) prevents anything from being an invention or a manner of
manufacture for the purposes of this Act only to the extent that a claim in
a patent or an application relates to a computer program as such.
(3) A claim in a patent or an application relates to a computer program as such
if the actual contribution made by the alleged invention lies solely in it
being a computer program.
In this, the Knowledge Economy, where innovation increasingly depends on how information and data are applied, managed, and created, eradicating computer-related patents is almost as logical as banning patents on anything using electricity. It is an expression of a Luddite mentality that will slow progress in some of the most promising areas of the economy.
Greg Aharonian of the Internet Patent News Service, a keen observer of patent trends and government follies in the IP world, in email to his subscribers sent Aug. 29, 2013, readily pointed out the hopeless defects in this law, arguing that it is “meaningless without a definition of ‘computer’ and ‘computer program.'” He illustrates this with some examples:
Take a computer program written in C, with a listing of the C source code. Clearly that is a computer program. Now, run the C code through a hardware/software co-design tool and create an Application Specific Integrated Circuit that performs the C code. Is the ASIC a computer program? Of course not, it is hardware, a chip, not programmable … but a computer program to anyone who isn’t brain dead.
Or, convert the C code into a burn pattern for a Field Programmable Gate Array? Is this FPGA a computer program? Well, it is pure hardware, a chip, but it is more programmable like a microprocessor executive now-banned computer programs. Computer program or hardware? Finally, using the same co-design tool, just compile the C code and distribute it on a CDROM for execution on a PC or Mac. Clearly that is a computer program. But its all the same thing. It is the same algorithm in different embodiments.
Yet none of these subtleties are reflected in the law for lack of a definition of “computer” and “computer program”. This is the same patent law terrorism seen in not defining “abstract”, “obvious”, and “as such”.
This law, like many of the utterances of justices in the U.S., reflects profound ignorance about the digital world and the nature of computers, computer chips, software, hardware, smart appliances, automation, and electronic technology in general. Reacting to backlash over low quality patents in this manner does nothing to address the quality problems and only adds to the expense and difficulty for those seeking to protect their inventions. It’s another recipe for innovation fatigue.
Billionaire Mark Cuban, after complaining about patent lawyers making too much money, condemned the US patent system for blocking innovation. He and some other wealthy elites are troubled by US patent rights and would like to dismantle large parts of the system. This is a growing and troubling trend. The voices in the tech community claiming to have a “consensus” against patents are not the ones creating the technology, so argues Gene Quinn at IPWatchdog.com, but those who want patents out of their way so they can more easily exploit the work of others. I think Quinn’s argument has a great deal of merit.
The patent system has plenty of problems that can discourage innovation, but these problems arise from poor law, poor courts, poor examiners, and other problems that weaken the ability to obtain and enforce valid patents for genuine inventions. The solution is not to dismantle patents, but to strengthen them and their quality. The basic patent system is fundamental to encouraging innovation. If my invention can be copied by someone else at no cost, why would I go through all the trouble and cost of bringing it to the market? There is a need to protect property rights in order for an economy to flourish, and the existence of the US patent system has been one of the main reasons for the phenomenal growth of the US economy over the years, while the weakening of property rights in that nation is now contributing to its economic decline.
To overcome innovation fatigue, we need to keep property rights, including intellectual property rights, alive and well. Don’t listen to the rantings of Cuban and his ilk. Understand the basic economic incentives needs for innovation to flourish, and then join me in pressing for a healthier patent system.
Here in China, copyists used to be the foundation of the economy, and there was little need for patents. Now China is changing dramatically and its government and industries see the need to strong IP to encourage invention and innovation for the new China. So here, patents are becoming stronger as America weakens its system progressively with the help of “progressives” like Cuban and some very poor judges and politicians. Chinese companies are racing to build aggressive IP estates while America complains about its patents. At this rate, in the next 10 or 20 years, who will lead and control the global economy?
But wait, haven’t there been studies showing that patents hurt innovation? Allegations, yes, but a careful look at history does not support the argument. Below is Ron Katznelson’s valuable input to the Gene Quinn article mentioned above, taken from the comments section. The links Ron provides should be helpful in debunking popular myths:
However, we have a greater challenge when history is rewritten by those who mischaracterize, distort, or otherwise ignore historical facts to “demonstrate” that patents block downstream development. This revisionism has been going on for the last century and has produced certain myths and false “proofs” of the patent blocking/hold-up hypothesis. The number of scholarly sources that repeat the patent blocking allegation may now be so great that the allegation has become an entrenched and unchallenged “truth.” It is being taught in economics, business and law schools. In my opinion, it is the major source of misguided patent legislation and court opinions. The myths are originally perpetrated to serve agendas that have very little to do with innovation policy.
In every instance so alleged, a further investigation of the real facts surrounding the subject patents reveals that no downstream development suppression occurred, and in some cases the opposite had occurred. The details of some examples that my colleague John Howells and I looked at are detailed in the following papers recently submitted for publication:
The Myth of the Early Aviation Patent Hold-Up – How a U.S. Government Monopsony Commandeered Pioneer Airplane Patents, at http://bit.ly/Aircraft-Patent-Logjam-Myth.
Inventing-around Edison’s incandescent lamp patent: evidence of patents’ role in stimulating downstream development. at http://bit.ly/Inventing-around-Edison.
In each of these studies, we sought to collect, assemble and convey, a definitive and unassailable empirical evidentiary record including primary sources that cannot be characterized as “just another view” of the facts. Similarly, the economic historian George Selgin and his colleague John Turner have debunked patent blocking allegations regarding James Watt’s steam engine:
Strong Steam, Weak Patents, or the Myth of Watt’s Innovation-Blocking Monopoly, Exploded at http://ssrn.com/abstract=1589712 .
We have similar detailed analysis on other alleged patent blocking cases in the pipeline. Hopefully, these and future articles may change the misconceptions that fuel the patent blocking myths.
A grand old movie is “The Court Martial of Billy Mitchell” starring Gary Cooper as the aviation innovator Billy Mitchell. Billy Mitchell has a major airport named after him in Milwaukee and there is a small museum honoring him in the airport. Today his name is honored as one of the great champions of innovation that led to the United States developing air power for military advantage. His patriotism and his commitment to progress, though, resulted in a court martial by those in the military who were threatened by Mitchell’s ideas regarding aviation.
After World War I, hundreds of airmen in the military, including many friends of Colonel Billy Mitchell, were dying due to poor maintenance of the fleet. The military was neglecting aviation. The politically powerful Army and Navy saw no need for an airforce. Only a handful of functional aircraft were in the US military. But Mitchell had a vision of the future and recognized that aircraft must be an essential part of our future military strength. He argued, he cajoled, he carried out dramatic demonstrations of what aircraft could do, all at great risk to his career. He also predicted that there would be a military strike against us at Pearl Harbor, and that we needed to prepare more vigorously. His efforts to bring change resulted in court martial and a dramatic trial.
The opposition to military innovation was so great and yet his desire to make a difference was so strong that he chose to give up his military career and push for aviation as a civilian.
If the military had listened to Colonel Mitchell earlier, if there has not been so many innovation fatigue factors hindering Mitchell, many lives might have been saved.
Thank goodness, though, that Mitchell, like many great innovators, endured and was willing to sacrifice to bring about change. He should be counted as one of the great heroes of the U.S. and of innovation.
A surprisingly common problem in industry is that the technologies and systems that some large companies use are clearly not the “best” choices based on a variety of fairly objective standards. I’m not necessarily talking about difficult trade-offs where the “best” technology involves high cost and high risk, but am also considering cases where there is simply no objective justification for rejecting a proven innovation. Yes, well-proven innovations with superior performance and lower cost may be rejected in favor of older, more familiar approaches. An article illustrating this in the paper industry is “Overcoming Hurdles on the New Technology Path” in Paper360 by Emil Germer et al., May/June 2012. The authors note that many paper companies continue to use a very old technology for bleaching pulp that is easily shown to be inferior to more modern techniques using ozone. The ozone-based technology is not just more environmentally friendly but gives superior costs and performance. It should be an easy win for this innovation, but the older technology continues to be selected by many large mills. How can this be?
The authors identify five problems that can hinder the adoption of innovation. The first one, though, is the focus of this post. It’s the tendency of companies to rely on a few technical experts who may be terribly outdated in their knowledge. Thus, one person who still clings to old biases or who has not updated his or her expertise may make dead-wrong decisions that hurt a company and crush innovation.
The authors give an example of an internal report written by a company’s bleaching expert recommending against ozone technology for bleaching. The report was well written and exquisite in detail, but relied on data that was 15 years old. None of the recent breakthroughs in ozone technology were noted. The expert apparently had been focused on maintaining existing technology and hadn’t done any significant refreshing of his expertise in over a decade. The competence of yesterday is today’s incompetence.
Corporations need to insist on up-to-date technical skills and boot or bypass those who don’t stay current. Executives should also not simply rely on one person for critical input. Talking to multiple experts and getting internal and external review of technical recommendations can save a company from the errors of a single mind.
One can also blame short-term thinking, conservatism, and other flaws, but whatever the cause, when a corporations opts for technology that is clearly inferior in both cost and performance, something is wrong and there needs to be a way for those at the top to correct the organizational or cultural problems that could lead to such wasteful outcomes.
“This is something that is dangerous and clearly unsanitary,” warned New York senator Jeffrey Klein in October 2009. “Once we shed light on this dirty little process, more people will avoid it and we can ban it.” The terrifying menace that so worried the good state senator and led him to introduce legislation to ban it is a natural therapy that has been used successfully for 400 years to treat the skin of feet. 400 years of successful, healthy treatments in the form of fish pedicures. In the US, though, the process is very foreign and has a certain squirm factor to it. Small fish that nibble at dead skin are a relatively common treatment offered in several parts of Asia, but in the West, worried officials have been applying or creating various regulations to fight against the invasion of new options for beauty care, one of many highly regulated business areas where innovation fatigue often comes from the burdensome and sometimes unpredictable applications of regulation.
In the US, approximately 15 states have banned fish pedicures. Some regulators say that they require tools used for pedicures to be completely sterilized after each treatment, which would mean, of course, frying the little critters after they’ve nibbled on your feet. An expensive proposition for business owners. Several people wishing to bring this new service to their community invested heavily in the systems needed for safe, clean tanks and fish, only to have new regulations added that would single out their business and ban it.
Can’t people make their own decisions about where they stick their feet, or how they deal with their bunions? If someone wants to use a natural method that has 400 years of successful history, do we really have to tell them that they aren’t allowed to for their own good? Sure, there are risks, perhaps similar to the risk of putting one’s feet into the water at a beach or swimming pool. But regulators protecting the public from themselves with unnecessary layers of regulation and bureaucracy represent one of the most difficult and painful forms of innovation fatigue. Someday we need to allow business and innovation to flourish and just get out of the way.
Yes, I recently tried fish therapy and found it to be remarkably refreshing and effective. The fish–I think these were Chinese chin chin fish, though Middle Eastern doctor fish are most commonly used–just nibble at dead skin and leave the healthy live skin alone, so they don’t cause bleeding or irritation. It’s hard to see how this could be any more dangerous or terrifying that placing one’s foot in a lake, a stream, or swimming pool, with the exception that there are 100% organic fish like to tickle your feet. I hope to try this again.
In my recent post, “Invisible Innovation: The Blindness of the West to China’s Innovation Story,” I lamented the failure of the Thompson Reuters list of 100 top global innovators to include anything from China (and Taiwan). In that post, I erred in stating that Foxconn’s 700+ US patents in the 2005-2010 time period for the TR study was greater than some of the companies that made the list. The error is that I should also have added Foxconn’s patent company to the search. By searching for “Hon Hai Precision” or Foxconn, I now see that we’re dealing with a company has over 5800 patents, more than three times as many as Apple in the same time period. What this means is that I was wrong in saying that Foxconn has more patents than SOME of the companies in the list–they actually have more than MOST of the companies on the list. The invisibility problem I discussed is even worse than I thought when such a mammoth patent estate escapes notice.
So how was Hon Hai/Foxconn overlooked, when they have more international IP activity than Apple and most of the companies listed? How is that possible, when their innovations are a major part of the Apple success story, and when they are the world’s largest maker of electronics? An electronic cloak of invisibility seems to have covered Foxconn and other Chinese or Taiwanese companies, making Chinese innovation largely invisible to the West. It’s time to take the cloak off.
On Sept. 16, President Obama signed the Leahy-Smith “America Invents Act” which supposedly will strengthen innovation and improve our patent system. It’s a radical change in our patent system–one that seems to have been drafted by people who don’t fully understand patents or innovation.
Does this bill promote innovation as advertized? What about that 15% rate hike for patent fees–a new 15% tax on the IP that entrepreneurs need. That’s the most immediate and obvious change. Guess which way that increased burden tilts the balance? Economics 101 suggests that making innovation more expensive is not likely to make it more abundant. But Congress may know better.
Congress apparently recognizes that we have a problem with the patent system, where huge backlogs exist that cause enormous delay and expense for inventors. The backlog and efficiency problem they are allegedly fixing, however, does not require all the unintended consequences of revising patent law but simply improving the administration of the PTO. For example, if Congress would refrain from siphoning off many millions of dollars of PTO funds each year, effectively taxing innovation and crushing the ability of the PTO to properly staff itself and keep its systems up to date, then the backlog could be easily resolved, in my opinion. Unfortunately, we seem to have another case of politicians proposing costly solutions that won’t solve the costly problems that they caused. As long as Congress can redirect funds received by the PTO, the administrative problems at the PTO will not be resolved by changes in patent law. (See “Patent Reform–A Tax on Innovation?” and “Let the Patent Office Keep Its Money.“)
While probably not solving the problems it allegedly fixes, the America Invents Act clearly raises a host of new problems that may lead to unpredictable results in costly litigation for years to come. The radical changes involving who gets patents and what is prior art use confusing language that strips the bill of the “certainty” that its proponents allegedly sought to restore in the system. See excellent reviews of the controversies in these sources:
- Joshua D. Sarnoff, “Derivation and Prior Art Problems with the New Patent Act,” 2011 Patently-O Patent Law Journal, http://www.patentlyo.com/files/sarnoff.2011.derivation.pdf.
- Eric Guttag, “Some More Heretical Thoughts on Strategies for Coping with First to File Under the America Invents Act,” IPWathdog.com, Oct. 5, 2011.
- Gene Quinn, “Prior Art Under America Invents: The USPTO Explains First to File,” IPWathdog.com, Oct. 4, 2011.
Harold C. Wegner of the respect form Foley and Lardner has published an analysis of the law (3rd edition, Sept. 29, 2011) which highlights its pervasive ambiguity due to poor drafting. This is a serious issue which will cloud patent law and hinder the quest for patent rights for years to come. Wegner also rules that the new law may increase backlogs because appeal judges will have to continue dealing with their heavy load of existing cases as well as take on added cases of “post-grant reviews” and other new administrative procedures (supplemental examination and transitional examination of business method patents) which are provided in the new law. The backlog is sure to increase and fees will be raised even more to cope. Meanwhile, the new post-grant review process has “dractonian” elements, as Wegner observes, that may further impede the ability of an inventor with a real invention to obtain a patent. Further, there are numerous details Wegner identifies in his 177-page text showing potential harm to “upstream” entities like universities and small inventors while benefiting those downstream entities that want to use the innovations of others for their business as cheaply as possible. I smell innovation fatigue.
In my view, the bill reflects fundamental ignorance about the nature of invention. The perplexing provisions on prior art highlight this. Years of litigation that will be needed to clarify what on earth is meant by the new prior art provisions as patent professionals already express exasperation over issues of derivation, inventorship, and prior art in the new law.
A crucial part of the ignorance here is on the nature of invention itself, amplifying the confusion created by the judiciary regarding what is patentable. Viewing business methods and software as somehow being non-technical, in spite of typically involving highly technical systems and tools, opens many cans of worms. If something is novel, useful, and non-obvious, why should it not be patentable if it involves computers and electronic data? But the judicial backlash against vaguely defined “business method patents” has been institutionalized in this new law, where business method patents dealing with the financial services industry (thank you, Wall Street lobbyists) have been given special treatment, allowing Wall Street to have a special route to invalidate patents that otherwise have survived basic prosecution, reexamination, and prior litigation. Section 18 of the law describes how those being sued by a “covered business method patent” can have a special hearing to invalidate the patent. That section includes this gem to define that key term:
(1) IN GENERAL.–For purposes of this section, the term “covered business method patent” means a patent that claims a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service, except that the term does not include patents for technological inventions.
(2) REGULATIONS.–To assist in implementing the transitional proceeding authorized by this subsection, the Director shall issue regulations for determining whether a patent is for a technological invention.
The drafters of this law apparently view “business method” inventions as distinct from “technological inventions.” If science were to rule, it would be clear that one cannot clearly distinguish between “technological inventions” and a claim involving data processing or management of a financial product or service when technology is involved. Why is a new use of a computer to advance financial services not “technological”? Why is it a less worthy invention than a new use of a polymer or of amide chemistry or of coherent photons? This probably relates to the non-scientific but widely held view among judges and politicians that information, data, and electronic signals are somehow not part of the physical universe and should be viewed as abstractions rather than concrete entities that relate to physical measures such as entropy and require tangible matter and real energy to manipulate. Note that “technological” is undefined, perhaps because it cannot reasonably be defined in this unreasonable provision of an fatigue-generating law. I wish the best of luck to the Director of the PTO in clarifying this opaque miasma.
The richest innovations transforming our era involve inventions rooted in the processing and manipulation of information and these innovations must be encouraged and rewarded, not excluded from patent coverage because some failing but well-connected ‘too big to fail” entities don’t want patents from others to stand in their uncreative way. The AIA clearly shows the power of those Wall Street entities in guiding legislation and giving them special breaks, breaks that will do anything but strengthen innovation. Like much of the rest of the law, it’s directed at fixing the wrong things in the wrong way. May wiser heads quickly repeal or massively revise this legislation before backlogs explode and innovation fatigue is further spread across the US system.
Meanwhile, from my vantage point in Shanghai, I see China increasingly strengthening incentives for innovation and strengthening patent rights. This bodes well for the competitiveness of China in the future. America will soon be wondering how to catch up. How about some real patent reform down the road?
For a rather optimistic but definitely helpful overview of the impact of the AIA on patent practice, see PLI’s page, “America Invents Act: How the New Law Impacts Your Clients and Your Patent Practice.”