Google's Left and Right Hands

Google's blog recently posted a statement about how the patent system should promote innovation and criticizing "low-quality software patents" that do not provide innovation and only "stake bogus claims...." Google then goes on to say that the best strategy is to create a great portfolio. I completely agree with Google's discussion and emphasis on high quality through the patent system, and with the strategy of making a bid for Nortel's patents in order to strengthen their portfolio. However, I can't help but reflect that Google was just issued exclusive rights to "doodles" that entice users to a website. Is this the type of innovation Google pronounces in the statement on their blog? Possibly. Offhandedly, I might say that, from a programmer perspective, I am unimpressed with the patent. However, I think the doodle innovation is not found in its software, but rather as a innovation in the marketing realm. Google has created a great a marketing niche which has been successful. Note: commercial success is a secondary factor to analyzing obviousness.

First-Inventor-To-File needs a name change.

First-Inventor-To-File has part of the patent reform bill is accurate, however, the results of the change would require a better title: First-to-Disclose. Currently, disclosure of patent-eligible subject matter can stop a patent from being issued if it is more than one year prior to invention. In the proposed system, any disclosure before filing creates estoppel from allowance of the patent eligible subject matter, unless that disclosure was "derived" from the inventor. This may create disclosure wars, where individuals will disclose ideas as soon as possible in order to block their competitors from being able to obtain patent protection for their idea. However, the solution may already exist; it is the provisional application. The provisional does not require claims, but only needs a description of the invention and a pictures, if necessary. The provisional would allow innovators to obtain a protective filing date before the invention could be reduced to practice or perfected. Then that original filing could be perfected into a regular application, as long as new matter is not entered. Query whether this will induce higher quality patents?

Software Patents Consistently Withstand Opposition.

See my article on the latest activities in software patents at the UNH Law Patent Law Forum.

Those That Can't Do, Troll

Righhaven tracks internet traffic to search out copyright infringement. In this case, bought rights so they could have proper standing to sue political candidate Sharron Angle. So why doesn't this fall under the fair use exception? Elements for analyzing fair use include purpose of the use, nature of the work, the amount used compared to the amount copyrighted, and the affect on the copyrighted market. It must be that in this case, a political candidate's use of news articles is closer to commercial than non-profit use because she is campaigning for the political seat.

Evil Divided Against Itself

Three adult entertainment companies are suing over illegal distribution of their copyrighted material. Immoral creativity is just as protected under the law as useful creativity. I already hate to see an awesome technology such as Bittorrent, which has revolutionized data distribution, because of copyright infringement, but how much more tainted does it look in this case. There are relevant uses out there for Bittorent technology, for example, Blizzard's update downloader.

Patent Police w/ Benefits

Patent trolls are organizations that only own patents and do no business for themselves; therefore, the only source of possible income is to search out and sue infringers (which may not be such a good income source). For example, see this post though its not a great example.A new spin on patent trolls is to find products that are improperly labeled as patents. This form is more like being a USPTO hall monitor, but hey, who doesn't want to be a free-lance patent Bounty Hunter? Though I think it is important to protect the public, I don't think you should be paid for it. I would like to see this sort of thing as an IP pro bono gig instead.

The Business of Invention

Paul Allen, co-founder of Microsoft, is suing as many top tech companies as he can think of. Paul Allen's firm Interval Licensing is “trolling” (if you don't mind the pun”) through deep waters, ironically including Microsoft. Interval Licensing claims that four patents about improving user's online experience are allegedly being violated. Facebook's response is that Interval Licensing is “trying to compete in the courtroom instead of the marketplace.” Though his view is likely correct from a business perspective, Facebook wants to have its cake and eat it too. By which I mean utilize protections for itself but deny it to others. If Facebook is an infringer, then we can infer that competing in the marketplace means undercutting law and no different then committing fraud or anti-trust violations. It is more likely the case that Interval Licensing is betting that the accused companies will rather settle then pay the cost of litigation. So, in regards to Facebook's response, I would say Interval Licensing IS competing in the marketplace and not the courtroom, or in the least we can see that avoiding the courtroom is a "market" where we can find a lot of money transferring hands.