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03.11.18

Patent Maximalists Cause a Crisis of Legitimacy for Patent Law

Posted in Intellectual Monopoly, Law, Patents at 11:13 pm by Dr. Roy Schestowitz

A crisis

Summary: The patent extremists who nowadays equate monopolies on mere ideas to “property” and “rights” gradually cause the public to lose respect for patents, more or less in the same way copyright maximalists (and copyright trolls) cause the population to seek alternatives (both legal and illegal)

THE concept of “intellectual property” is a vague one, especially because it’s a misnomer, sometimes abbreviated as “IP” or “IPR” (a third misnomer, “rights”) to avoid actual debate about suitability of pertinent words. I believe in trademarks. I see their purpose (when not overused, as often happens, granting monopolies on singular dictionary words). Copyrights are important too; they’re essential in management of software code, even if slanted as copyleft (which derives its ‘teeth’ from copyright law). Patents as originally envisioned (when conceived) typically pertained to physical inventions which required labour to produce and reproduce (or mass-produce), not mere thoughts/ideas.

“Patents as originally envisioned (when conceived) typically pertained to physical inventions which required labour to produce and reproduce (or mass-produce), not mere thoughts/ideas.”Terms like “IP” or “IPR” aren’t helpful; they’ve become propaganda terms that dodge a serious, adult debate and open-minded assessment of rationale. These equate a monopoly with a “right” and a “property”. Monopoly is neither of those things.

At the end of last month, on February 26th to be precise, August Debouzy’s François Pochart, Lionel Martin and Mathilde Rauline were lumping together totally and entirely different things. They used the word “IP” in their article titled “One IP standard to rule them all” and only later on they broke that down into what they actually truly meant:

All the useful data for all IP rights (patents, trademarks, designs, software …) as well as contracts are coded. Tags are provided for a very large majority of cases or facts: among them the social form of the applicant or its nationality, further the internal references to the case, the applicable law, the fact that it is a divisional application for patents or the language of the technical field for brands, the procedural deadlines, and many more.

Well, “patents, trademarks, designs” (and copyrights, trade secrets etc.) have different laws associated with them, so no serious debate can be conducted under a banner like “One IP standard to rule them all”.

“Terms like “IP” or “IPR” aren’t helpful; they’ve become propaganda terms that dodge a serious, adult debate and open-minded assessment of rationale.”This is symptomatic and quite so typical among law firms.

Jeffer Mangels Butler & Mitchell LLP’s Stanley M. Gibson wrote about Gemshares LLC v Arthur Joseph Lipton the other day, regarding challenges to validity of patents. Here’s a portion from the article:

GemShares LLC filed a patent infringement action against Arthur Lipton and Secured Worldwide, LLC (SWW) on U.S. Patent No. 8,706,513 B2 (the ‘513 patent). The ‘513 patent is entitled “global investment grade for natural and synthetic gems used in financial investments and commercial trading and method of creating standardized baskets of gems to be used in financial and commercial products.”

According to the district court, Lipton became a one-fifth owner of GemShares in 2013, while the patent application was pending. Lipton executed an operating agreement that included a term requiring him (and other GemShares members) to disclose and present to the company opportunities related to or likely to be competitive with GemShares’ business.

Putting aside the abstract-sounding patent (maybe a business method), what we have here is a couple of LLCs (typically entities that do not produce anything concrete) bickering over patents. The one sure thing is, lawyers will win. Lawyers will pocket a lot of money in the process, which is an attempt to challenge the patent’s validity and an (counter)attempt to outright block such a challenge. Shouldn’t it be a perfectly reasonable thing to question a patent’s validity? The US Supreme Court would indirectly decide on that quite soon in Oil States. Remember that, contrary to the nonsense from Crouch et al (regarding this case), patents are not property. Oil States is about IPRs, which challenge not “ownership” but the validity of some granted monopoly.

“Remember that, contrary to the nonsense from Crouch et al (regarding this case), patents are not property.”We are frankly appalled by some of the spin that comes from the patent microcosm. These people just aren’t honest; this dishonesty is necessary for them to continue to make buckets of money. There are upcoming lobbying events on the subject of IPRs, e.g. “Webinar on Paragraph IV Litigation and IPRs” and “FCBA Program on IPR Estoppel” (suppression of challenge) and guess who’s attending. These are all echo chambers of the patent ‘industry’. They want no patents challenged; they’re patent maximalists and absolutists.

Dealing with Solutran, Inc. v US Bancorp et al, CBM estoppel was last week considered by Docket Navigator. When a company sues you with a patent and when you show that the patent is obvious (and thus bogus), can that company then attempt to suppress or prevent judges from seeing the evidence of obviousness? As Docket Navigator put it:

The court denied plaintiff’s motion in limine to exclude evidence of obviousness because CBM estoppel did not apply to an entire statutory basis.

Got that? It’s like some of those ludicrous court cases where the defendant is prevented from presenting evidence in his/her defense. That happens a lot in military courts or in cases pertaining to “national security” (with the classic excuses that a legal defense might be to the detriment of “national security”, or in practice embarrass the state).

“Patents have, in general, gotten a bad name among programmers because they’re sick of software patents, which they neither needed nor wanted.”We often wonder how patent lawyers sleep at night knowing that their occupation often involves subversion of justice rather than defense of the system’s integrity. Maximalists are the opportunistic vandals. We’re not against patents (we never were!); for their legitimacy or perceived legitimacy (acceptance among the public) they need to follow strict rules and be open to scrutiny. A lot of the general public already shows flagrant disdain for copyright law because of copyright maximalists who just exploit copyright law for censorship, complete control of the Internet, mass surveillance (in the name of catching ‘pirates’) and so on.

Treat patent law with respect; or else risk breaking this entire cornerstone of so-called ‘IP’. Patents have, in general, gotten a bad name among programmers because they’re sick of software patents, which they neither needed nor wanted.

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