Patently-O Bits and Bytes by Juvan Bonni

Recent Headlines in the IP World:

2 thoughts on “Patently-O Bits and Bytes by Juvan Bonni

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    From the Letter to The Advocate

    Now that the federal tax reform is behind us, we want to bring your attention to another problem plaguing our country and our community: a weakened U.S. patent system.

    The words “weak” and “strong” are a source of much mischief when applied to patents. These terms mean a million different things in a million different mouths.

    Is a patent with a 25 year term “stronger” than one with a 20 year term? Arguably, yes. Does that mean that our patent system is unacceptably “weak” because it does not accord the same 70-years-from-the-life-of-the-inventor term that we grant to copyrights?

    When people say that patents need to be “stronger,” they really mean (e.g.) that software per se should be eligible, or that granted patent claims should not be subject to revocation in IPRs, or some such. It would do much to advance and clarify the arguments being presented if folks would actually address those issues on the merits, rather than whining about “weak” protections, or exhorting us to pursue “strong” protections.

    [R]ecent changes to U.S. patent laws have placed intellectual property rights at risk. Unfortunately,… [t]he United States has dropped in ranking of best patent systems from 1st to 10th for the first time since the U.S. Chamber of Commerce began ranking patent systems.

    Why does this fact get bandied about so often? Why should anyone care about the USCOC’s rankings? Cooley law school runs its own rankings (in response to its low placement in the USNWR rankings), and I rarely see anyone mentioning whether their own alma mater moves up or down in the Cooley rankings, because the Cooley rankings are a self-interested joke. The USCOC is scarcely an unbiased observer here. Their “rankings” are as meaningless as Cooley’s.

    China is outpacing the United States in number of patents filed, and some American companies are even considering moving overseas to countries with stronger patent systems that will better protect their rights.

    The above is a rather flagrant instance of the logical fallacy of post hoc, ergo propter hoc. Clearly, some companies are moving their operations to other countries, and some of those other countries have (in this or that aspect of their patent systems) “stronger” (what ever that means) protections. Consider me highly skeptical, however, that any of those moves are motivated by patent considerations. After all, a U.S. company can get a Chinese patent, and vice versa, so there is no obvious patent law reason why any company should locate its operations in any given jurisdiction.

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      Yes, much more specific and reliable date based alleged facts and more specific legislative or rule making suggestions are needed. For example, it would be desirable to see specific examples from other countries with patent infringement damages judgments comparable to some of the very large such judgments in the U.S. in recent years. Also, examples of patent injunctions against major products in foreign countries. Also, comparison of patent-obtaining and patent litigation time and cost for patent owners.

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