A Good Primer on Why the US Patent System is F%$#ed Up

Over at Ars Technica, Timothy Lee has a couple of very good articles on what was wrong with our patent system.

The first is about how the Federal Circuit Appeals Court, which set up to be the sole appellate court for patent matters, and how is has gone completely off the rails ). He calls it a rogue court:

"It is not common in the life of the law in America for a lower court and a major segment of its bar to take on the nation's highest court, effectively reversing some major precedents or at least substantially mitigating their impact," notes Steven Flanders in a recent history of the patent court. "Yet this was done."

The Federal Circuit, he said, also took on "the quieter and subtler effort to re-educate trial judges throughout the judiciary, to make them friendlier to patent-holders (or at least to the system of patents) as well." (Flanders, it should be noted, is an avowed supporter of the Federal Circuit and its efforts to reshape patent law).

This dismissive attitude toward Supreme Court precedents apparently survives to this day among patent lawyers. In the wake of this year's decision limiting patents on the practice of medicine, patent attorney Gene Quinn wondered, "How long will it take the Federal Circuit to overrule this inexplicable nonsense?" Obviously, the Federal Circuit can't "overrule" a Supreme Court decision. But with enough persistence, it can, and often does, subvert the principles enunciated by the nation's highest court. And when it does so, it almost always works in the direction of making patents easier to obtain and enforce.

It's a good description of how and why our patent system has gone nuts. 

He gives a good summary of how we got there, and why the Supreme court is increasingly willing (perhaps eager) to bitch slap this court.

My only complaint is that he did not cover the seminal patent trolling case, NTP v. RIM (Blackberry), which was crucial in making both SCOTUS, and increasingly larger segments of the "Very Serious People".  (You are seeing this in legislation about patents floating around Congress)

As some background, when NTP got an injunction against RIM, they asked RIM to cut off all commercial and residential users in the United States, and RIM's response was that this wasn't possible, so they would cut off all their users, including the government.

This would mean is that people like Congressmen, their aides, and Supreme Court Justices and their clerks would lose access to their "Crackberries".

As a result, the consequences of patent trolling suddenly got real for them, and they realized that the Federal Circuit Appeals Court is full of a bunch of extremist nutcases.  (I'm sure that there is an obscure legal term for this in Latin, but I'm an engineer, not a lawyer, dammit.^*)

I emailed him about this and he noted that he had included a number of injunctions from patent trolls, including the Blackberry case, but ended up on the cutting room floor.

Additionally, he writes a good article on the International Trade Commission, which routinely prevents products from being imported on the basis of (frequently bogus) patent claims:

If you follow the smartphone patent wars, you've probably heard of the International Trade Commission (ITC), which seems to get dragged into every high-profile patent dispute over the devices. Just this month, Motorola asked the ITC to ban various Apple products from the US, and the ITC separately ruled that Apple doesn't infringe some Samsung patents. But how did this obscure Washington bureaucracy become a major front in the patent wars?

The ITC has the authority to police "unfair methods of competition" by importers, a phrase interpreted to include patent infringement. Because virtually all mobile devices are manufactured overseas, getting the ITC to ban the importation of a device can be just as effective as getting an injunction from a regular court.

A new study from the Cato Institute, a libertarian think tank, suggests that the ITC's patent-enforcement process is tilted in favor of patent holders—and especially patent trolls. The author, K. William Watson, argues that the inherently discriminatory nature of ITC patent enforcement—ITC cases can only be brought against imported products, not domestically produced ones—violates America's obligations under World Trade Organization rules not to discriminate against foreign products. He says Congress should eliminate the provision of trade law, known as Section 337, that gives the ITC authority over patent issues.

Go read both articles.



^*I LOVE IT when I get to go all Doctor McCoy!!!