Anti Patent Rhetoric, does it help?

Why are bright people uncharacteristically dense when it comes to understanding patents? Ignorance about a simultaneously technical, legal and commercial discipline is a factor, but there may be something else going on. The recent wave of assaults on patents and the patent system is difficult to ignore. Attributed to the innovation rights has been everything from destroying American innovation to genital warts. They and those who have the audacity to deploy them have been depicted as the evil marauders. It makes one wonder.

A particularly spurious attack was generated recently by Andy Kessler, a former hedge fund manager and AT&T engineer turned pop-business author. I was not alone feeling my skin crawl reading Mr. Kessler’s recent WSJ op-ed, Patent Trolls vs. Progress. It was little measure of relief that Mr. Kessler’s piece was eloquently skewered by Tessera Technologies’, General Counsel, Bernard J. “Bernie” Cassidy in a Politico commentary, Shooting a Patent Straw Man. These writers don’t improve innovation, they trample on it.

Cassidy explains that “The Founders granted patent rights to ‘non-practicing entities’ — in those days mostly poor but technically inventive farmers, workers and artisans — because they hoped to spark a surge of innovation activity among the citizens of our young and underdeveloped nation.” He also reminds us that the gamble paid off for the U.S. in the mid-19th century.

Mr. Kessler’s commentary was also taken to task by Patrick Anderson in Gametime IP, who called it insipid and a fairly predictable diatribe.

“Inessential Patents”

Even more outrageous than Mr. Kessler’s piece is another WSJ commentary, A Patently Obvious Problem, by Holly Finn. It appeared a few days later in a weekend edition that many regular readers may have missed. Ms. Finn begins with the (now quite tired) “wacky” patent argument, to show how detached from reality the system has become. “Patents aren’t what they used to be,” she observes, referring to the USPTO’s allowance of too many “inessential patents.” She cites statistics and a dispute brought by Oracle against Google (Ms. Finn’s former employer) as “a broader assault against American imagination.”

Who can presume to know which inventions are essential, or will be? It is not the USPTO’s responsibility. Patent examiners review inventions for their novelty and whether they are obvious. They are not judging commercial or social relevance, nor should they. Often, the best invention is often reinvention. New features that make something work better or differently may constitute something valuable, no matter how inane they may seem at the time.

Ms. Finn continues bemoaning the patent glut, takes a shot at Intellectual Ventures and concludes: “Actual inventors in Silicon Valley are incensed, their faith in fair play as bruised as their bottom lines.”

I don’t know about you, but I don’t hear inventors decrying patents? Many are telling me that they wish they had more funds to file patents and enforce them.

Ms. Finn talks about a new company, Connected Patents, “to help bridge the gap between brains and bureaucracy.” The problem is I could not find anything on the Web about Connected Patents, not even a simple website. I did find a few sentences on CrunchBase where Connected Patents is vaguely described as something between as strategic adviser, investor and NPE. It is not at all clear when they do. Ms. Finn concludes with a knock on first-to-file, a ridiculously dated argument that the AIA has made moot and the U.S. is alone in, patent trolls (yawn) and an invocation to tech CEOs to be more mythic and take on the cause of tech defendants.

Holly Finn’s biography shows she is a Yale grad and holds an MBA from NYU-Stern.  She ran Google’s editorial team and has written on  Silicon Valley and is the author of a book, “The Baby Chase: An Adventure in Fertility”.  She also is communications director of the Skoll Foundation, a non-profit whose founder and major benefactor, Jeff Skoll, eBay’s first full-time employee and President, is the executive producer of 33 feature films. The Skoll Foundation’s mission is “to drive large-scale change by investing in, connecting and celebrating social entrepreneurs and the innovators who help them solve the world’s most pressing problems.”

You have to wonder how much patent-dubious, brand-savvy Google and social engineer Skoll, which sounds like something of a VC, shaped her thinking about IP and Silicon Valley. Both enterprises likely believe they stand to lose more from patents than gain.

It is sometimes difficult to understand what motivates people to write about patents. I tend to give people the benefit fo the doubt. I have a hard time recognizing that misconceptions are not always honest, and inaccuracies are often not the result of a familiarity deficit. Sometimes where a writer stands has a lot to do with where she sits.

The sad part is that there are people who take  fact-related commentary literally. This ultimately undermines innovators and effects commerce more than Ms. Finn and Mr. Kessler are willing to admit.

Contrary to what some commentators would have us believe, patents are not typically “gotcha” rights that unscrupulous speculators wield against innocent innovators, deep-pocketed corporations and hapless consumers. Time will determine whether it is the patent system or its more mis-guided detractors that are the greater danger to innovation.

Bruce Berman.  This blog first appeared on May 7 on IP CloseUp, who refrains from investigative journalism, as they leave that to the specialists. Its mission is to examine IP issues like transactions and people, and to provide a look behind the headlines.

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