Letter to an Anonymous Patent Attorney

Kinsella: Letter to Anonymous Patent Attorney, Jan. 9, 2002 PATNEWS • Kinsella: Response to Patent PractitionersFurther ReadingAppendicesReplies to Kinsella, Jan. 16, 2002 PATNEWS • Replies to Greg Aharonian’s Comments on Lessig, Jan. 7, 2002 PATNEWS • Letter from Anonymous Patent Attorney, Jan. 7, 2002 PATNEWS • Lessig’s Reply to Aharonian, Jan. 7, 2002 PATNEWS • Greg Aharonian Comments on Lessig, Dec. 16, 2001 PATNEWS

Greg Aharonian is the Matt Drudge of the patent world, and his Internet Patent News Service newsletter — better known as PATNEWS — is lively and interesting. While Aharonian loudly decries the quality of software patents and the patent bar’s apathy and unwillingness to agitate for improvements, he adopts a mainstream, empiricist-utilitarian mindset, defending patent law in general and insisting that the patent system can be improved and reformed “if only” certain tweaks are made to the system. So while Aharonian postures as a maverick, he nips only at the margins of whatever the mainstream IP system happens to be, but does not buck the system as a whole.

Case in point is a recent PATNEWS (Dec. 16, 2001), in which Aharonian critiqued Stanford law professor Lawrence Lessig’s new book, The Future of Ideas (Amazon link), and Lessig’s modest suggestions to limit patent rights in some areas. Several replies to Aharonian’s comments (including a reply by Lessig) were published in the Jan. 7, 2002 PATNEWS. Among these was a letter from an anonymous “corporate patent attorney” criticizing Lessig, in part, on the grounds that Lessig was not a registered patent attorney and thus did not have the appropriate credentials to make his critique.

The newsletter offered other critiques of Lessig as well, by other patent attorneys and law professors. Most of them echoed the criticism that Lessig has no appropriate patent law credentials or experience. Many, as is typical of patent attorneys, adopted the empiricist mindset that we have to look at evidence to compare the costs and benefits, to decide if patent law is a good idea — and then they go on to assume it is justified, even though they cannot point to any evidence or definitive studies in their favor. One even defended the patent system yet would, “until my dying days … attack the quality of issued patents and case law, both in deep trouble”. This author even suggests (apparently not tongue-in-cheek) that if the government really wants to “promote the arts and useful sciences” (the alleged goal of patent law), it should supply “freebie patent agents for the poor, just like it supplies public defenders for the indigent and criminally-accused.”

In response, I sent a letter to Greg which was published in the Jan. 9, 2002 PATNEWS. Below is a lightly edited version.

Letter to an Anonymous Patent Attorney PATNEWS Jan. 9, 2002



The unnamed corporate patent lawyer bashes Lessig on the grounds of his lack of credentials. He refers to him as a PPPPP — Pompous Pedagogue Pronouncing Patent Policies. Let me say that I am an experienced, registered (not “licensed”) patent attorney, and I, for one, have an even greater opposition to the patent system than does Mr. Lessig. My reasons can be found at www.stephankinsella.com/ip.

I do not mean to make an argument from authority, but to demonstrate that it is indeed possible to be a patent lawyer, to know a great deal about the system, and still to oppose it. This corporate patent lawyer may be right about pompous, unexperienced academics mouthing off on policy matters. But an ad hominen is no substitute for a critical analysis of an argument. Either Lessig is right, or he is not, regardless of his “credentials.” What is the relevance, anyway, of Lessig’s not having prosecuted a patent before? — does anyone think patent lawyers, when they prepare, file, and prosecute patent applications, gain any special insights into the innovations gained by society? Of course not; patent lawyers prepare patent applications when paid to do so by their clients. Simple. They don’t get any special insight into whether this government-granted monopoly is, overall, on the whole, a good idea. If anything, they are biased in favor of the system that butters their bread.

In fact, in my view, most patent lawyers — most lawyers in general — fit into the category “Pompous Pedagogues Pronouncing Patent Policies”, to the extent they themselves unthinkingly spout pro-patent slogans. That is because most patent and IP and even other attorneys with an opinion on this issue mindlessly parrot the simpleminded economics with which they were propagandized in law school. Virtually every patent lawyer will reiterate the mantra that “we need patents to stimulate innovation,” as if they have given deep and careful thought to this. Of course, virtually none of them have. They repeat what they have read in Supreme Court and CAFC (Court of Appeals for the Federal Circuit, the primary federal appellate court dealing with patent law issues) opinions as if the positive law enunciated by government functionaries is some Holy Writ. It does not take a genius to figure out why most patent lawyers are in favor of the patent system; and it is not because they have really studied the matter and dispassionately concluded that society is better off with a patent system — it is because they don’t want to see the system that pays the mortgage for them eroded or abolished.

I do not claim that I have special knowledge as to the legitimacy of patents (pro or con) just because I am a patent lawyer — but neither should others. And not being a patent attorney, or an attorney at all, is no bar to having an informed opinion on the subject (can only women have an opinion on abortion? Only blacks on affirmative action?). In fact, IMO lawyers tend have an unjustifiably smug view as to their comparative advantage at formulating policy values and opinions. (In fact patent lawyers are less knowledgeable because they are biased. For example, IRS employees may know more about the tax system, but is their opinion that the tax system is a good thing especially persuasive?)

If anything, the reverse is true: given the brainwashing and special-interest aligning that most lawyers are subjected to, I’d take the knee-jerk, “unsophistocated” value judgments of a “layman” any day over those of the average lawyer. Lawyers are notoriously opinionated on political and policy matters, yet they fare no better than the laymen in being able to muster a coherent defense of their own policy views, preferences, and values. At least laymen do not delude themselves that their own policy values and preferences are some lofty, authoritative opinion because interlaced with selected aphorisms from Supreme Court opinions and politically-correct, mindnumbingly boring and irrelevant law review articles. Nothing wrong with patent lawyers doing their jobs, but they should not blindly parrot the mainstream rhetoric spoonfed to them in law school just to delude themselves that their profession is some categorical necessity.

Stephan Kinsella http://www.stephankinsella.com/

Three replies to these comments, by patent agents or attorneys, were published in the Jan. 16, 2002 PATNEWS. Below is a lightly edited version of a response I sent to Aharonian and the patent practitioners:

Kinsella’s Response to Patent Practitioners

January 23, 2002

“But now I want to describe a second form of protectionism – perhaps more threatening to the promise of the Internet’s future. This threat too is the product of state intervention into Internet space. And this intervention is even harder to justify. … The issue here is patent law.”

“Threatening” – I hope we will be seeing some strong, assertive data. Dashed hopes instead.

“But here, economists have an important qualification: If we don’t know which direction an improvement is likely to take, then licensing may not occur, and patents here may actually do harm.” ^^^ ^^^

MAY and MAY. But where’s the data? He cites a few economists’ comments on the effects of patents, but economists’ models have mostly been too simplistic and/or too unconclusive. He offers no data of his own. Such a combative book with no new data, and little old data. Next he uses the biblical-authority argument:

“This skepticism has been with us from the start of the patent system. Ben Franklin thought patents immoral. … The first patent commissioner himself – Thomas Jefferson – was also extremely skeptical about these forms of monopoly.”

Look, these were great men, but Franklin that it was moral to deny woman the right to vote, and Jefferson thought it moral to own slaves and to deny African Americans the right to vote. Such historical ancedotes have little relevance in a IP discussion 250 years of science and technology developments later. So Franklin and Jefferson voted unskeptically to deny women the right to vote but voted skeptically to have a patent system.

Another quote is a good example of some of the misleading information included in the book:

“But in the past twenty years, an important shift has occurred. The limits to the reach of patent law have been eroded by a number of expansions in patent law doctrine. “These changes”, Adam Jaffe [an economist] writes, “were not brought about primarily by Congressional action, but rather by the … Patent Office.”

Now Lessig (and Jaffe) knows that the Patent Office does not establish patent law doctrine, but rather only implements patent law doctrine. Patent law doctrine is for the most part established by the Court of Appeals of the Federal Circuit (CAFC), with the occasional higher involvement of the Supreme Court. In fact, the patent doctrine expansion most tourbling to Lessig, software patenting, was actually resisted by the Patent Office for (way too) many years. Chakrabarty (organisms), Lowry (data structures), State Street (business methods), Pioneer (seeds) – these are all expansions of patent law decided by the CAFC and the Supreme Court. This quote does not belong in the book.

Next he is inaccurate with the history of software IP.

“Before the 1980s, software inventions in the United States were not subject to patent protection. The reasons were tied to the nature of programming (programs were considered algorithms, and algorithms were traditionally not protected).

Wrong. In the 1960s, software was used by hardware vendors to sell their hardware, led and dominated by IBM. They didn’t want software patents getting in the way, and wrote such business goals into a Presidential Commission report that found its way into a 1972 Supreme Court decision, Gottschalk v. Benson. This decision and its ill-begotten spawn (CONTU), the reason why algorithms were thought not to be patentable, was a decision repeatedly criticized in the years to follow, a decision which took 20 years of CAFC decisions to render obsolete.

A bit later, he contradicts the earlier Jaffe quote:

“In 1998, however, the United States Court of Appeals for the Federal Circuit put this idea to rest. The patent law reached business processes just as any other, and patents for business methods, were, the court held, not invalid because of the subject matter.”

Right. The CAFC establishes doctrine, not the PTO as the economist Jaffe asserted.

He then provides misleading information at a crucial point in his attack on patents:

“While it is clear that patents spur innovations in many important fields, it is also clear that for some fields of innovation, patents may do more harm than good. {90}”

Once again, a MAYBE, because he has no data of his own. Footnote 90, which he bases his assertion on the harm of some patents, is a reference to a paper by James Bessen and Eric Maskin titled “Sequential Innovation, Patents and Imitation”, which using highly artificial and simplistic economic models concludes that under some conditions patents maybe bad. He also quotes a book, Patently Absurd, “[T]he rush to acquire patent portfolios could slow down the generation of new ideas.”. MAY, MAYBE, COULD – truly wimpy assertions with little real world data.

He then inadvertently proposes an idea for a serious book on this subject:

“My claim is not that these transaction costs are so high as to make patents unadvisable in the Internet context. My point is simply that these considerations, supported as they have been {96}, at least raise a question.”

Footnote 96, his support for this assertion, once again is the paper of Bessen and Maskin. Attacking patents based on Bessen/Maskin is like shooting rubber bands at an elephant.

But he is right, this is an interesting question. So let’s collect some real data, not write these MAYBE books. (Lessig should take a look at some of the recent papers by Mark Lemley at UCal Berkeley’s law school, which do present numerical data on IP practices.) But I doubt a book on the patent impact on the Internet will be funded because the data will show that the impact of patents on Internet/software has been no different than the impacts of patents on other fields of technology (maybe even milder, biotech has bigger patent woes), and that the impact of patents on business, good and bad, is generally handled by and accepted by most industries. Problems, especially low patent quality and high litigation costs, sure. But those are logistic problems, not legal problems.

He then once again forgets who establishes patent policy, citing one of the more rather clueless commentators on intellectual property laws:

“Publisher and Net guru Tim O’Reilly was on the same panel. He had a quick and devastating response. The head of the USPTO, O’Reilly said, has two roles in the administration. One is, as Dickinson had just said, to run the office. But the other is to advise the administration about what policy made sense. And where, O’Reilly asked, following up on my own question, was the policy analysis that justified this extraordinary change in regulation?”

Devastating? I think not. Sure, the PTO offers advice to Congress and to the Administration. And to the courts, which is where the types of policy changes Lessig cares about are actually established. But Congress has pretty much let the courts’ analysis set patent policy, because that’s what the large companies that dominate intellectual property want, and Congress obeys.

He then cites some more history:

Another bit of laziness:

“But we will never know whether or not it [patent system] does any good if we accept this never-ending expansion without limit. We will never know what benefit this regulation provides until we begin to demand that the regulation prove itself. For the harms from this regulation are not hard to identify, and for the cynical, or conspiratorial, the harms are not surprising.”

How can we never know about something that is not hard to identify? SHOW ME THE DATA. Here is one good of the patent system – it helps some startups raise money.

“The harms are even more pronounced, however, for open code projects.”

SHOW ME THE DATA. Open code is more plagued by being based on faulty business models and the open coder’s lack of education about intellectual property, than threats from patents.

“As Richard Stallman writes, ‘The worst threat we face comes from software patents, which can put … features off-limits to free software for up to twenty years.'”

“The reasons patents harm open code in particular is not hard to see.”

SHOW ME THE DATA. In fact, one of the few data points of actually harm and financial loss is, …….., Greg Aharonian. My lawsuit is based on my Web site’s use of open source software (I use the Apache server). Most other harm is that found in every other industry with patents.

He then points out a problem I agree with, but again this is a logistic problems solved by toughening up implementation of Section 112:

“The problem is exacerbated with software patents because though the patent system was designed to induce inventors to reveal their invention to the public, there is no obligation that a software inventor reveal his source code to get a patent.”

I agree completely. Much like the biotech patents, Section 112 dealing with enablement is a big problem with software patents, right after 102 lack of novelty and 103 lack of non-obviousness. Every software patent application should include a diskette with the source code on it (no silly best mode objections, please), just like the gene sequence people have to submit their gene sequences. And the PTO should make available an online database of these source codes. Think of it – an online database of over 100,000 computer programs in source code form – it would dwarf everything similar on the Internet, such as freshmeat.

Next, a comment that no IP academic really gives a damn about:

“And then there is the expense of patents, which is borne more sharply by smaller inventors than larger.”

I have yet to see an academic law journal article seriously explore the costs of small inventors acquiring and defending patents. Isn’t there at least one activist law school to do a better version of PATNEWS?

Next, another “harm”:

“Finally there is the obvious hold-up problem – where an innovator is about to release a product and is discovered to be violating a patent. …. As [Berkeley economist Carl] Shapiro concludes: ‘[T]his hold-up problem is very real today, and … should [be considered] a problem of first-order significance in the years ahead.]

This is a problem that affects all industries, not just software, so it is not a problem that can be used to attack software patents. And if we can improve the quality of issued patents (another issue of no interest to academic law journal articles), the problems of hold-up are lessened.

He then wanders into the economics of commons:

“Nobel Prize-winning economist James Buchanan has expanded this idea to the problem of regulation generally. He points to the problem of patents in particular as an example where multiple and overlapping patent protection may create an anticommons, where innovators are afraid to innovate in a field because too many people have the right to veto the use of a particular resource or idea. This potential for strategic behavior by these many rights holders makes it irrational for an innovator to develop a particular idea, just as the possibility of veto by many bureaucrats may leave a particular piece of real property underdeveloped.”

MAY. POTENTIAL. POSSIBILITY. Again, SHOW ME THE DATA of harm. And if you do collect the data, I suspect it will show that the anti-commons problem for software patents, assuming it exists, is no different and probably milder, than other areas of technology such as biotech and integrated circuits.

He concludes his patent commentary:

“The complexity in these rights to exclude creates this anticommons problem. And the more severe the problem, the more it will stifle new innovation.”

MAYBE. But where is the empirical data showing real stifling effects on the software industry because of patents, especially data that shows the effects are substantially worse than the impact of patents on other fields of technology? Are too many bad software patents issuing? Sure. Can we economically decrease the number of bad software patents issuing? Just as sure.

The urgency [for reform] in the field of patents is even greater. Here again, patents are not evil per se; they are evil only if they do no social good. They do no social good if they benefit certain companies at the expense of innovation generally. And as many have argued convincingly, that’s just what many patents today do.

A few sentences later:

In particular, [the PTO] should be required to perform an economic study to justify the most controversial extensions of patents right now – business method and software patents. If these forms of innovation regulation can’t at least meet the burden of demonstrating that they are more likely to aid innovation than harm it, then Congress should withdraw this form of monopoly protection.

Never say that Lessig doesn’t have a sense of humor – these two sentences are hilarious. First, after lambasting the PTO for being unfair he calls for the PTO to do a fair study that conceivably could not be in the bests interests of the mandarins that run the PTO. It’s like the NRC being asked to do a critical study of the nuclear power industry (hahahaha). Second, no other technology has been asked to demonstrate that their patents aid innovation more than harm – why should software and business methods technologists be asked to do so? Seems to me violate some equal protection aspect of federal laws that Lessig champions.

His last comment on patents?

In the meantime, there are smaller changes that Congress might make, all designed to lessen the harm patents generally, and bad patents in particular, might cause.

Yea, like what? He couldn’t have devoted one more page out of 261 to mention a few of these smaller changes. I hear Lessig is going to lead a campaign of patent law academics to call upon all patent prosecutors to charge their clients less money so that their clients can have more money to do prior art searches (or pay higher fees to the PTO to have them do better searches), as well as demanding that Rule 56 be greatly toughened, and that the Jepson format be mandatory. (YES, this last sentence is dripping sarcasm).

Greg Aharonian Internet Patent News Service

January 25, 2002