Shouldn't We See It As A Problem When Patents Are The Product Itself?

from the just-basic-common-sense-here... dept

Forbes has given some space to Alan Minsk, a patent lawyer who was in-house patent counsel for Openwave -- a company that we recently noted had decided to become a patent troll after failing in the marketplace -- as well as with Intellectual Ventures, perhaps the world's largest patent troll. In his column, he talks up how simply wonderful it is that companies have realized that patents aren't just about protecting products, but have become key products themselves. He seems positively gleeful at the idea of writing patents so broad that they cover entirely unrelated industries:
My own approach was to identify potentially patentable innovations (i.e., those that were not clearly unpatentable) that had a well-defined strategic value proposition, and then proceeding to seek patent protection for a broad-based interpretation of the underlying concept of those innovations.

Since many innovations represent a solution to a technical problem, this approach often involved determining other industries (or other situations within the same industry) in which a similar problem arose, and then generalizing the description of the innovation so that it could be used in those other industries or situations. This typically required developing a description of the underlying concept of the innovation in generic functional terms instead of implementation specific terms (a process I termed “functional deconstruction.”)

And, because the strategic value propositions (or use cases) for a patent often changed as a company developed and competed with others, my approach was an iterative one that was re-visited regularly in case a decision that was appropriate at one time was no longer appropriate because of new information. This applied both to patent application filing decisions and to those made during negotiations with the U.S. Patent and Trademark Office as part of the process of obtaining a patent.
In other words, not only did he try to patent things as broadly as possible to cover other industries, he would regularly try to broaden the patent as the market changed, even though the application was already ongoing. The whole thing seems to be bragging about the exact process of how to destroy competition and innovation in a market by locking it up in some vague piece of paper.

If we are to believe that the patent system was designed to "promote the progress" then it needs to be admitted that patents are never an end, but always a means -- a means to develop actual products that genuinely represent progress. And yet, that's not what they've been for quite some time, and it's highlighted by the idea that they should ever be considered primary products in and of themselves. That's a sign of a totally broken system. It may be one where patent lawyers like Minsk make out nicely, but it shows a failure of the system as a whole -- and when that happens we have a system that hinders, rather than aids, innovation.
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Filed Under: alan minsk, patent troll, promote the progress
Companies: intellectual ventures, openwave

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  1. identicon
    Michael L. Slonecker, 5 Jun 2012 @ 12:25pm

    Patents are not products, nor should they be.

    No "Pro Se" here because this is a matter as to which I have had 34 years to consider in great detail, during which time I have observed general practice law firms, commencing about the early to mid-80's, insinuating themselves into this and closely related fields of law, and newly minted counsel in far too many instances perverting the intent underlying Article 1, Section 8, Clause 8 of the Constitution.

    Why the shift? The realization that adding such "practice areas" to their "services" represented a potentially significant and lucrative source of future income, and especially with respect to litigation. Concurrent with their entry the cost of litigation began an inexorable, asymptotic increase to levels never before imagined.

    A patent is no more and no less than a piece of paper (with a really nice gold seal and red ribbon I might add) representing certain rights in an underlying invention. If such pieces of paper are now to be viewed as products in and of themselves, then perhaps we should start calling "deeds", "promissory notes", "stock certificates", and the like products as well.

    While it is obvious that my views are not shared by some within my profession, I cannot help but believe that much of what is viewed as abusive conduct took root and flourished when "billable hours" became the driving, if not preeminent, force. Another contributing factor was whereas those of us who limited our practices to patents and other closely related areas of law, thus reauiring us to learn the substantive law in great detail, this did not universally carry over to the new entrants in the field.

    Please excuse my concluding here, but in using my name I believe discretion is the better form of valor.

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