Slate on RIM-NTP and Software Patents

8 Feb ’06

Tim Wu has a piece on Slate that digs into the archaeology of the RIM-NTP litigation and looks at software patents generally. It’s certainly opinionated (it is Slate, after all), and often more than a little inflammatory, but it’s also quite funny (“The company RIM is itself a special kind of tech outsider, known in the business as a “Canadian.” “). Gist:

About the best that might be said of trolls like NTP is that they’ve inspired a serious patent-reform debate. A growing crowd—including major firms like Amazon, IBM, Intel, Yahoo!, and Microsoft, and academics like Mark Lemley, Douglas Lichtman, Bhaven Sampat, Arti Rai, and others—now advocate some form of major patent reform. They want to fix the PTO to ensure that only the best, truly novel inventions get a patent, and they want to change aspects of patent procedure that currently make harassing litigation too easy. Ex-FCC-chairman Reed Hundt, for example, proposes reducing the number of patents by 90 percent and handing over a lot more money to those overworked patent examiners.

But for reasons both political and theoretical, the more important answer may be to face the software-patent problem head-on, as some groups have been urging for years. It may be better to recognize software patents as an unfortunate economic experiment and to either abolish software patents altogether or place stringent limits on their assignment.

{ 7 comments… read them below or add one }

Lawrence B. Ebert February 22, 2006 at 22:28

Of the issue of caring about the system as a whole, one has to distinguish between RIM/RIM’s lawyers having done a bad job in this case in distinction to a systematic problem. When NTP started rattling cages, someone (competitor/nonprofit/etc.) could have filed a re-exam with killer art and we might not be facing the potential Feb. 24 doomsday.

Not all so-called troll patents crumble. In the Eolas case, the PTO director (with input from W3C) initiated the re-exam, but when all the smoke cleared the claims stood intact. eBay filed a re-exam after losing in litigation, and its prospects are not so good.

Of Wu’s stuff, I thought the Strangelove imagery was way off the mark. The issue in the movie concerned the Russians NOT telling anyone about the Doomsday Machine and the chaos that followed. With NTP, the contents of the patents are known, and people are free to respond to such known Doomsday Machines as they see fit. The patent system is about making public disclosure of inventions that conform to the requirements of patent law (e.g., novel, useful, nonobvious) and it is not about someone actually making a commercialization of something.

Of the Strangelove stuff:
http://ipbiz.blogspot.com/2006/02/tim-wus-weapons-of-business.html

Of IP academics who completely misunderstood the patent grant rate issue:
jip.kentlaw.edu/art/volume%204/ 4%20Chi-Kent%20J%20Intell%20Prop%20186.doc [4 CHI.-KENT J. INTELL. PROP. 186]

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Lawrence B. Ebert February 20, 2006 at 22:46

Of –For a law professor, I thought the piece was a little slipshod, actually. Fair point about the patent office and its incompetence, but the lawyer’s name at NTP is Donald Stout, not David — and he filed the patent on behalf of the inventor, Thomas Campana, a man who actually did invent something,–

–> There are several NTP patents involved in the litigation. One of them is US 6,317,592 (inventors Campana, Ponschke, Thelen); it was filed by Antonelli, Terry, Stout & Kraus, LLP.

–> Of the perceived incompetence of the USPTO, the urban legend that the USPTO grants patents on 97% of applications was repeated in the academic literature by Wagner in Nov. 2005, and even worked its way into the eBay brief to the Supreme Court. Lemley’s endorsement of the later 85% number was based on a misstatement of Clarke’s analysis. Is it the incompetence of the USPTO, or the incompetence of legal academics, that is at issue in the patent quality debate?

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Tim Wu February 11, 2006 at 03:03

The error in the Stout’s name is a typo and I’m correcting it. I also think in retrospect I should have mentioned that Campana filed for the patents.

But don’t be distracted — in truth, I don’t care much about the merits of this litigation and who’s getting their just deserts (as the Globe and Mail seemed to) — I care about the system as a whole.

TW

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Mathew Ingram February 8, 2006 at 13:40

I noticed the link to the Globe piece and thought it was great. I try to link to other publications and/or blogs as much as I can — and I’m doing my best to get rid of the wall :-)

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Rob Hyndman February 8, 2006 at 12:40

Oh, and IMO the whole troll line of reasoning is ersatz. To my mind the only issue is whether the patent is valid and can be made available to the market for a fair royalty; who holds it is irrelevant. Indeed, the concept of a patent portfolio licensing entity – which is pretty well-trodden ground now – is efficient, IMO – and there probably ought to be more of it. If patents do incent invention, then making the commercialization of invention a more efficient process is presumably ‘a good thing.’

I don’t see this as being inconsistent with a patent reform regime that would invest more in ensuring that issued patents are good patents, would expedite the process of challenging them when they may not be, and would rethink the scope of ‘obviousness’, at least as it applies to IT.

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Rob Hyndman February 8, 2006 at 12:30

Mathew,

I noticed that too, and I was perhaps being too kind when I said inflammatory – my take was that he was being deliberately provocative for the Slate crowd.

BTW, did you notice his link to the Globe piece? Uncommon, I think, but permalinking between media is a very cool development (now you’ve got to get Angus to ‘tear down the wall’).

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Mathew Ingram February 8, 2006 at 12:05

For a law professor, I thought the piece was a little slipshod, actually. Fair point about the patent office and its incompetence, but the lawyer’s name at NTP is Donald Stout, not David — and he filed the patent on behalf of the inventor, Thomas Campana, a man who actually did invent something, which the author chooses to slide over by making it look like some smart lawyer cooked the whole thing up as a scam.

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