Tuesday, August 2, 2011

This American Life Takes on the Patent System

On July 22nd, Public Radio International program This American Life aired a program entitled: When Patents Attack!  You can listen to the show here.  The program takes on the patent system, focusing particularly on software patents and patent holding firm Intellectual Ventures.  Alex Blumberg of NPR's Planet Money and NPR's Laura Sydell co-reported on the piece, performing a months long investigation that lead them all the way from silicon valley to "sleepy" Marshall Texas and the hallway of empty offices at 104 East Huston street.

The program was very critical of the patent system, and rather unkind to Nathan Myhrvold and Intellectual Ventures.  Most of the criticism came from silicon valley software engineers and Chris Sacca, who described Intellectual Ventures as a "troll on steroids."  He also described IV's business method as a mafia-style form of extortion with start-up companies in place of the local butcher shop.

Intellectual Ventures responded to the piece on its blog, arguing that it draws ire for disrupting the status quo "by focusing its business solely on invention and investment in patents."  IV goes on to say that "Our ultimate value proposition is simple: we provide an efficient way for patent holders to get paid for the inventions they own, and in turn, for technology companies to gain easy access to the invention rights they need now or may need as they enter new markets." 

That's a hard pill to swallow when one realizes that IV negotiates a cut of future licensing revenues when it sells a patent.  It's also something of a lackluster response to a story in which software engineers admit to being required to write gobbley-gook patents with unidentifiable meaning and scope, and in which up to 30 percent of US patents are described as being "essentially for things that have already been invented."  This includes patent 6080436, issued in 2000, which describes a method for thermally refreshing bread, otherwise known as toast.  I'd be willing to go out on a limb and say that I'm qualified as a person of ordinary skill in the art of heating bread.  And if I'm not, my wife certainly is.  One of my mantras at home is "toast does not equal a meal."

The program's ultimate conclusion is that the patent system is broken with ridiculous, useless patents serving as nuclear weapons in an arsenal of Cold War style mutually assured destruction.  Referencing the recent Nortel patent auction, the program questions the value of spending 4.5 billion dollars on patents that will never  be developed into actual products.  But while those patents will not be developed into useful products that benefit consumers, they very well might lead to litigation.

There's no arguing that patent litigation is big business, and there's no arguing that consulting in connection with patent litigation is a big part of my business. There's also no doubt that patent litigation has been a financial boon to "sleepy" Marshall Texas and other East Texas communities.  The New Orleans area even benefits from the revenue that we bring in from out of state and spend in the community.  Like the software engineer writing useless patents, is it fair for me to criticize a system from which I personally benefit?  And if the system is broken, who is to blame?  The trolls?  The patent examiners?  The law?  The jurors?

There's certainly no easy or uncomplicated answers here, in spite of the simple narrative constructed by Ira Glass in When Patents Attack!  Just as it is easy for jurors to fit patent litigation into a simple, black and white David versus Goliath narrative, it was relatively easy for Mr. Glass to place patent litigation into an easily digestible narrative replete with both villain and victim that leads to a seemingly indisputable conclusion.  I personally think that the piece makes several good points, but its real value is in bringing the problems associated with the patent system further into main stream consciousness.  As much as it is tantalizing to draw conclusions from the story, I think it should instead provoke one to ask questions.  The patent system isn't all bad or all good.  Not every patent is a worthless nuclear warhead threatening only a mountain of legal fees.  Any solution to the problems that exist in the patent system will have to take this into account.

For example, the pharmaceutical industry views patents in a much different way than the software industry.  The second half of this story from KCRW's To The Point discusses a wave of expiring patents in the drug industry and the potential effects it will have on consumers.  The story also begins to discuss the nature of pharmaceutical patents and the relationships between name brand and generic manufacturers.  In this case, without the protection of patents, one wonders whether pharmaceutical companies would be incentivised to invest billions into researching and developing new drugs.  But, of course, the issue is more complicated than this simple narrative.

What Were They Thinking: the Casey Anthony Verdict

Just about everybody has an opinion about the Casey Anthony verdict including our own Doug Green.  Doug was interviewed the day after the verdict by an outraged talk show host, hoping to bring a little sensibility to the discussion.  You can listen to the interview here.  Short attention span?  What were the prosecutors thinking, charging capital murder on a case where the coroner could not even determine cause and manner of death?  After spending the past few years working on patent cases in East Texas, this jury verdict reaffirms our faith in the jury system.