Fixing the Patent System to Improve Innovation

On Friday, April 12, 2013, I was at American University Washington College of Law for a program titled Patent Subject Matter Eligibility Today: Software, Genomics, and Business Methods. I participated on a panel titled CLS Bank en band: Are Software Methods Patentable? What I want to write about today, however, is not our panel presentation, but rather the Keynote presentation by Suzanne Michel (no relation to Chief Judge Michel), a former deputy director of the FTC who is Senior Patent Counsel at Google, Inc., working in Google’s policy office in Washington, DC.

It is no great surprise probably, but I disagreed with practically everything she said, although I did enjoy her presentation. I love to debate the issues, and she is extremely knowledgeable and well briefed on what is happening in the trenches. Those of us who disagree with the proffered narrative that the patent system is broken can’t ignore competent advocates like Michel. She is not a patent-hater and her message is sharp, crisp and clear, although I do think it is misleading. The patent system is not broken, and for reasons I can only guess the best and brightest leaders in much of the big-tech industry are pursuing paths not calculated to succeed; at least if the goal is to stem the rise of patent litigation and innovate for the future.

With this in mind, what follows is a summary of Michel’s presentation, which if not titled was certainly themed — Fixing Problems of the Patent System to Improve Innovation. I also provide my thoughts and comments in the format of comments from the peanut gallery, or perhaps as a patent law equivalent to Mystery Science Theater 3000 In order to differentiate my thoughts/comments from Michel’s presentation, my comments are italicized, colored, indented and tagged with the IPWatchdog logo.


You just don’t understand what innovation is!

Michel began her presentation recognizing that while the patent system is not perfect, there is “no doubt that innovation is critical to promoting consumer welfare, and no doubt that the patent system plays an important role.” She explained that “patents play a critical role in innovation in many industries.” But it was not long before she moved into what is wrong, in Google’s view, explaining that there are flaws in the patent system and citing patent assertion entities (i.e., patent trolls) and the need companies have to spend money to obtain large defensive patent portfolios.

Michel then explained that a big part of the problem within the industry is that there is not a common understanding of what the word “innovation” means. She defined innovation as taking a new idea, turning it into an invention and putting it into the hands of consumers. “Until a product is put in the hands of consumer it is still an invention, not an innovation.”

Frankly, I agree with Michel. Many within the industry simply do not know what “innovation” means. Of course, her definition of innovation is completely wrong.

Merriam-Webster’s dictionary defines innovation in this way: “1: the introduction of something new; 2: a new idea, method, or device: novelty.” Thus, it is rather clear that Michel and those from big-tech who rail against patent trolls are the ones who are misrepresenting and misleading with respect to the true definition of “innovation.”

Innovation is NOT about products in the hands of consumers. Innovation is about advance. Under her definition of the term innovation no university researchers innovate, those scientists in Federal Laboratories do not innovate, research and development companies do not innovate, and independent inventors do not innovate. For crying out loud, Thomas Edison would not have been an innovator either based on this definition of innovation. How ridiculous is that? How ridiculous is it to pretend that Edison didn’t innovate, but the companies that licensed his patent rights and took products to market did? This offered definition of innovation strikes me as utter nonsense. 

Big tech prefers to define innovation as products, and that is how they can erroneously conclude that patents harm innovation. Patents do not harm innovation. Patents promote innovation because they require disclosure of the invention and explanation of the “something new” so that those who come thereafter can stand on the shoulders of those who have come earlier. Patents provide incentive and we simply would not have as much disclosure without them. Just look at the explosion of patents after the creation of the Federal Circuit. Up until then patents were rarely, if ever, found valid. Once they have a chance in court they are worth pursuing and we get disclosure over closely held trade secrets.

Obviousness standard and its application at the USPTO

Michel explained that obviousness is a problem with the patent system: “The system is supposed to grant patents only on those inventions that are not obvious.”

Because of the limitations of language you are likely to either grant patents that don’t deserve to be issued, leading to what she referred to as false positives. Similarly the limitations of language can cause leading toward false negatives, where those that deserve to be issued are denied.

Hard to argue with this so far, but that is typically the way the argument starts. Put forth something that is unassailably correct and then tweak it a bit more than logically correct. The playbook then typically is to so moral indignation that there is disbelief of what is unassailably true, when in fact the disbelief is associated with what is objectively incorrect. In any event, it is true that when seeking a patent something needs to be unique. As a result sometimes language does betray the underlying innovative reality. This is particularly true with pioneering innovations. 

Michel then went on to say that the system tends toward the false positives with respect to software and business methods. She explained that a lot of things would happen regardless of whether a patent could be obtained. She claimed that this view of the universe is supported by Graham v. John Deere, or at least the interpretation of that case by Professor Duffy, who she cites.

First, I am really sick and tired of hearing that the Patent Office grants software and business method patents as if they are candy. That is FALSE! To the extent it ever was true it was true over a decade ago, and Michel and all those who make this false accusation either know it or they should know it. Certainly, the USPTO under the Obama Administration is once again issuing patents, but to pretend that patent examiners issue everything that crosses their desk is fanciful.

You may recall that there was great interest in covered business method post grant review, which was a part of the America Invents Act (AIA). This gives those charged with infringing business method patents an avenue to utilize post grant review proceedings at the USPTO. Since it became available on September 16, 2012, only 15 such proceedings have been initiated according to the USPTO during the first six months. That is a telling statistic! These patents are such an overwhelming problem that the industry simply ignores the vehicle they demanded to challenge them at the USPTO? Must not be such a big problem after all!

Those who represent innovators in this space know that over the past 8 to 10 years things have considerably tightened at the USPTO, particularly during the majority of the Bush Administration. Bad software and business method patents were issued during the Clinton Administration, then during the Bush Administration little was issued, which was a problem in and of itself because innovation was being buried for fear of a single bad patent issuing. That did tremendous damage to our high-tech economy that became most apparent after the financial crash in 2008. Now during the Obama Administration we are somewhere in between, with good patents issuing, bad applications being denied. 

Still, not all is a tale of roses and golden eggs at the USPTO. Take for example Art Unit 3689, which has an abysmal allowance rate of just over 6% according to statistics accessible through the PatentAdvisor system. See also Allowance Rates for Art Units Examining Business Methods. Those who are saying that today patents are being handed out on bad patent applications and non-inventions in the business method and software space are either grossly misinformed or they are lying.

Of course, whether something would have happened eventually even without a patent is not a part of the patent inquiry. Frankly, it cannot be a part of the patent inquiry because this slippery slope would render everything unpatentable. Anything and everything can be said to be eventually inevitable. The question the system asks is whether the invention is new, non-obvious and adequately described. Patents are about incentive, and the fact that eventually innovations would be made is anathama to the system. The Constitutional foundation for the patent system is to benefit society as early as possible through the dissemination of information and the advance of science and innovation as quickly as possible. That is why in the words of Thomas Jefferson we tolerate the embarrassment of a monopoly for a limited time.

Why the patent system leans toward false positives

Michel explained that the patent system leans toward false positives because there is a belief that there is little harm in doing so, citing Judge Rich’s language explaining that the marketplace will justify and check because no one will want to pay for bogus patents.

This was described as a theory, and only a theory. Indeed, a theory that is not true. In fact, I couldn’t disagree more. Patent detractors love to pretend that they are victims of the patent system and patents need to be curtailed. The trouble is that Google and other big tech companies have their own patents and simply want to prevent others from obtaining patents.

Google and other big tech companies know how they achieved their dominance and it was thanks to innovation that became protected by patents. The ire of Google and the rest of those who are being plagued by bad lawsuits – nuisance value lawsuits – should be directed to the district courts. The district courts have the tools at their disposal to ferret out shakedown, extortion-style, nuisance value lawsuits that are a very real problem for the industry. These tools, such as Rule 11 sanctions are not used primarily because the legal system is not predisposed to believe that litigants (i.e., patent plaintiffs) are engaging in nefarious, nearly criminal activity by seeking to shake down defendants.

Rather than seeking to solve the problem Google and others would prefer that USPTO to stop issuing software and business method patents. Unfortunately, the law is written so that patentees are presumed to be entitled to receive a patent. There is great divergence of allowance rates at the USPTO, and to pretend otherwise is ridiculous. Some patent examiners openly tell patent attorneys that they don’t issue patents because their supervisors won’t allow them to issue patents.

Patent litigation is the root of the problem

Michel stated that increased patent litigation does not promote innovation, but rather distracts from innovation.

That sounds good, but my problem with it is that like so much else she said it is provably false. History is replete with so-called patent wars and so-called patent thickets. In each case these patent thickets and patent wars were the precursor to stunning, sudden and stark leaps in the advancement of technology. So if we are going to concern ourselves with factual reality then we should rely on facts, not sound-bytes that play well on Capitol Hill or in the media.

This often proffered and seemingly logical position that litigation is the problem simply does not hold water. Indeed, the patent system is practically designed from the top down in order to promote patent thickets as market participants race to dominate the marketplace and win as the sole standing company that has the ability to exclude all others. That never happens though and the thicket ultimately forces industry collaboration, which leads to explosive, paradigm shifting technological innovation.

Google’s problem is they are forced to sell patents to Patent Trolls!?!?

During the question and answer segment I asked several questions, specifically dealing with the industry causing their own problems because they settle for nuisance value, thereby making the trolling business model extremely profitable and without any risk. Michel stated that Google doesn’t settle these cases.

She also indicated that a problem Google and others have is that they “have to” get so many patents and can’t afford to keep them so they are practically forced to sell them to NPEs and then they wind up getting sued on those patents.

I can’t speak to whether Google settles patent litigation for nuisance value, but everyone knows that big-tech, small-tech and really, really small tech, settle with patent trolls who are bad actors engaging in extortion-like behavior. Very few companies fight to win. The overwhelming majority fight until a small demand (maybe $25,000 to $50,000) is made. Then those who would fight to the death to prove a point simply ask “who do I write the check out to?”

Settling nuisance value perpetuates the cycle, as the automobile industry discovered in the 1980s and early 1990s. Show a willingness to pay extortion-like demands and you will see more lawsuits filed. It is an endless cycle, at least until it gets broken. The solution is an easy one — fight at least occasionally, or at least one! Because the easy solution isn’t pursued and instead the industry pursues a strategy akin to a Buck during deer hunting season I have to assume that they really don’t want a solution. What other conclusion can you reach when intelligent people ignore the obvious?

It is almost surreal, but defendants settle nuisance cases without any merit and then drag legitimate lawsuits out as long as possible, challenge rights in as many forums as possible and litigate, re-litigate and re-re-litigate the same issues over and over in every possible forum. How utterly and completely ridiculous. In what universe does it make sense to reward bad actors with riches and deny innovators a reasonable royalty? Welcome to the wonderful world of big-tech logic!

In terms of being forced to sell to those who then sue, all I can say is: WOW! If this isn’t a problem that Google and other big-tech companies can’t figure out I don’t know what to say. I am nearly speechless. Obviously one solution is to simply not sell. Another obvious solution is to sell but keep a license for yourself. Still another solution is to sell but prior to selling grant a consortium a license. If the best and brightest legal minds in big-tech can’t figure that problem out then they need different legal representation. Feel free to give me a call. I can tell you how to solve this and other problems you face. I’ve made that offer numerous times and it is never taken. It never will be taken either because they aren’t interested in solutions. They are interested in perpetuating the problem to achieve their ultimate long term goal, which is a radical redefining of the patent system.

Finally I agree with something!

Michel said: “It is ridiculous to think the AIA solved the problems we are talking about.”

AMEN! The AIA just changes the law, but solves no problems. In fact, it actually encourages more patent lawsuits to be filed because of the anti-joinder provisions. So if you don’t like the steep increase in patent filings you really need to lay the blame squarely at the feet of Congress. See The AIA Explains the Recent Rise in Patent Litigation. This is the system they designed and it is working exactly as designed, albeit it not as intended. But this type of unintended consequence really is the hallmark of Congressional involvement, which is a sad commentary in and of itself.



Warning & Disclaimer: The pages, articles and comments on do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of

Join the Discussion

41 comments so far.

  • [Avatar for step back]
    step back
    April 25, 2013 07:05 am

    The End of “American” Innovation?

    Here is an excerpt:

    “I always hear politicians talk about America being at the forefront of technological achievement, and it’s just now hitting me how completely absurd that sounds,” said 37-year-old Seattle resident Daniel Townsend. “They’ve been saying that stuff for years as if it’s always right around the corner. If we’ve really been at a crossroads with the next wave of cutting-edge innovation at our fingertips, wouldn’t we have seen at least one huge breakthrough by now? Like something more important and life-changing than a new type of phone?”


  • [Avatar for step back]
    step back
    April 25, 2013 07:02 am

    Good idea.
    Here is “patent troll” versus “innovation” but limited to news in the category of law and government:,+patent+troll,+inventor&gprop=news&cmpt=q

  • [Avatar for Anon]
    April 25, 2013 06:54 am

    A couple more terms that might show interesting results:
    Court of public opinion, and of course,

  • [Avatar for Anon]
    April 24, 2013 03:51 pm

    step back,

    With all due respect, the word “sophist” (and thus “sophist trick”) is particularly apt.

    I am not sure why you seem bent on not using the word.

  • [Avatar for step back]
    step back
    April 24, 2013 02:42 pm


    Well said.

    Too many people pooh pooh the power of words.

    They fail to comprehend that there are armies of sophisticated think tankers out there playing with different combinations of noises (i.e. words, music, snorts, chortles and grunts) looking for the right combination to move the masses (or sheeple as Dale calls them) one way or the other.

    “Innovation” is merely one example.

    (And by the way, it is not a ‘sophist trick’. It is neuroscience. It is the stuff that modern elections are made of. Here’s hope, change and ‘Yankee ingenuity’ looking at you kid. Play it again Sam. You know, that old Goebell’s mind your mind tune. Thanks.)

    The Power of Love (no, wrong song, … of words:),3182365

  • [Avatar for Anon]
    April 24, 2013 02:07 pm

    The people who started that phrase knew exactly what they were doing

    Which leads full circle back to the idea that “innovation” is a sophists trick.

    There is a war going on – and one (very active) front in that war is exactly how the issues are being framed.

  • [Avatar for Dale Halling]
    Dale Halling
    April 24, 2013 12:56 pm

    Step back,

    I don’t think you are a conspiracy nut -the people who start these trends know what they are doing. For example, the phrase “Give Back.” It sounds so nice and no one thinks about the implications. But the logical implication of Give Back is that you TOOK FROM – it’s no longer charity. You are thief and just giving back what you took that was not yours in the first place. The people who started that phrase knew exactly what they were doing, but the sheeple think it is innocent and subconsciously cannot escape the logical implications.

  • [Avatar for step back]
    step back
    April 24, 2013 12:33 pm


    I’m not skilled in working the Google Trends tool.
    I tried but was not able to go back to earlier than the date range they provide.

    Also it was interesting to play with their geographic predominance tool and their ‘type of news” (i.e. government/law) options.

    You may think I’m a “crazy” conspiracy theory nut in seeing the build up of the campaign to replace inventor and invention with “innovation”. But now you see it too through your own lying eyes (–a take from comedian Richard Pryor’s line, who ya gonna believe, your lying eyes or me?)

    Think of any movie?
    The Nutty Professor and his “invention” of Flubber
    Doc Brown in Back to the Future parts 1, 2, 3
    Fulton’s Folly (before the movies were invented)

    First they laugh at you, then they attack you, then they steal your ideas and say they did it first.

  • [Avatar for Dale Halling]
    Dale Halling
    April 24, 2013 09:41 am

    Step back that is amazing. Is there anyway to go back farther in time?

    I have often thought that the “crazy inventor” image was purposely created for a political purpose. Think of any movie and the inventor is always crazy and always creating Rube Goldberg devices with no practical use. The campaign has been successful in getting inventors not to call themselves inventors. Instead they generally want to refer to their technical expertise. I think that this probably started somewhere between 1900 and the 1930s. Clearly, during Edison’s day inventors were not considered crazy or impractical, they were celebrated. I think the “crazy inventor” image was an attack on the individual and was picked up by the anti-trust crowd and big business. For instance, Edwin Armstrong I bet was portrayed as a crazy inventor by RCA.

  • [Avatar for step back]
    step back
    April 24, 2013 07:49 am

    Check out the linked-to Trends graph:

    Somewhere around 2008 the word “innovation” took off (upward use in the news) while “inventor” and “invention” dwindled

    (You can play around with the parameters, e.g. what kind of news, what country, regional interest over time for each tabbed term, etc.)

  • [Avatar for Dale Halling]
    Dale Halling
    April 20, 2013 10:30 am

    I think Step Back makes some important point about inNOvation. I think this nonsense was started by Joseph Schumpter and it was done to build up the importance of non-inventors in business (Finance, accounting, management, marketing). For more see my post

  • [Avatar for Paul F. Morgan]
    Paul F. Morgan
    April 19, 2013 10:17 am

    Gene, just one small quibble re your conclusions drawn from:
    “..covered business method post grant review .. Since it became available on September 16, 2012, only 15 such proceedings have been initiated according to the USPTO during the first six months.”
    Yes, that is a lot smaller number than the number of patent lawsuits on business method claims. But I think it’s ultimate usage may be too soon to predict accurately. Historically there was also a long slow build-up over several years in the usage of reexaminations. This is a very conservative profession, and many clients are also afraid of trying anything new, Some D.C. litigators are not anxious to give up litigation billings to enter into a new PTO trial system that only interference practitioners will readily understand, Nor are the advantages of this new procedure, as compared to regular PGR, or an PR, widely understood.

  • [Avatar for Anon]
    April 19, 2013 07:24 am

    step back,

    I think you missed the point of my comments: a standard dictionary.

    When you start playing cute and going to some Pyramid, well, then, the point about sophistry is made in spades.

    You have lost the argument by your own doing.

  • [Avatar for step back]
    step back
    April 19, 2013 06:46 am

    “… innovation, but not the kind that our Framers had in mind …”


    You seem to have been caught up by the mind meld.
    Our Framers did not know about this new fangled word, in-no-va-tion.

    Had you been paying attention –and this is something that I had been warning Dale Halling about for years– there has been a concerted effort (and dare I say a successful effort) to remove the word “invention” from the public discourse and to replace it with “innovation”.

    This effort has been so successful that even pro-inventor people like you Ron and like Gene have fallen prey to the gimmick.

    It’s time to say NO to inNOvation and to insist that our public leaders return to the words that our framing fathers used, inventors and discoverers.

    Inventors and dis-coverers (those who take the cover off, who un-cover) help to promote the progress of science and the useful arts because they reveal to the public (dis-cover) how to make and use new and useful things.

    Flim flam artists try to get everyone to speak in terms of inNOvation.

    These are tricksters who want to make sure the word “invent” (and the concept of the “inventor”) drop out of the public discourse.

    As far as they are concerned, the individual inventor no longer exists. He or she has been replaced by a nebulous concept, by innovation, by that which flows smoothly over the mouths of public officials as they proceed to dismantle the American patent system and to replace it with a harm-onized apparatus that robs inventors and dis-coverers of that which our Framing Fathers thought was their just and rightful compensation. That compensation includes public adulation; recognizing the inventors by name and by deed: Fulton, Edison, Bell, Wright and so on; elevating their status in society.

    In our “modern” society it is the corporation (you know, the invisible thing that has a right to vote, that replaces individual human beings) which is the thing that “innovates” –even if it keeps as trade secrets that which our Founding Fathers thought it prudent to place out there in the public arena, which is why they instituted the patent system in the first place —to secure “for limited Times to [people called] Authors and [to people called] Inventors the exclusive Right to their respective Writings and Dis-coveries;”


  • [Avatar for Ron Katznelson]
    Ron Katznelson
    April 18, 2013 10:13 pm

    Good article, Gene.
    Your explanation of the purpose of patents as promoting disclosure is incomplete: most importantly, patents promote investments in R&D pre and post grant, and even after disclosure, to develop and exploit the invention and bring it to market. This leads me to Step Back’s comment that “patents ‘stifle’ innovation.” This statement is meaningless. Regardless of how one defines “innovation,” the question is what innovations and who’s innovations are stifled. Fighting about the exact meaning of the term is a red herring and the term “true innovation” is unhelpful here.

    Technically, Step Back may be correct for certain innovations – those by unlicensed infringers. But that is precisely the purpose of the patent right to exclude – to stifle innovation by free-loader infringers. Had the Framers been merely interested in disclosure and uncoordinated exploitation of inventions and thought that the exclusive right “stifles” the progress of the useful arts, they may well have been satisfied writing in the Constitution that “Congress shall have the power … to provide just and fair remuneration to inventors for their discoveries” – resulting in compulsory licensing statutes. But they did not; they provided the right to exclude for good reason, knowing human nature and commercial realities. The right to exclude reduces the risk for investors in disruptive inventions that may threaten powerful market incumbents. The exclusive right affords “unfair” profits on investments that might not have been made but for such exclusivity. The exclusive right certainly coordinates innovation – encourages innovation by the inventor and its licensees, discourages infringing innovation by non licensees, and encourages design-around innovation.

    So yes, Step Back, patents do ‘stifle’ innovation, but not the kind that our Framers had in mind – not the kind that promote the progress of the useful arts.

  • [Avatar for step back]
    step back
    April 18, 2013 09:46 pm


    Not fair. YOU were supposed to bring the definitions to this party.

    But as Doc said in the movie, Tombstone; OK, I’ll be your huckleberry.

    Here is a citation to a paper that defines one version of the so-called Innovation Pyramid.

    It includes the following:

    Aesthetic Innovation:
    “Is the product easily recognizable?”

    Meaning Innovation:
    “Can the product be defined as a status-symbol?”

    Now it’s your turn Mr. Gunslinger. Shoot away.

  • [Avatar for Anon]
    April 18, 2013 08:54 pm

    step back,

    Let’s use a standard dictionary. You can even chose one if you like.

  • [Avatar for Gene Quinn]
    Gene Quinn
    April 18, 2013 08:03 pm


    You ask: “So “innovation” means taking (stealing?) someone else’s “invention” and making a lot of money with it in the market?”

    Apparently so. That seems to be the view of much of big-tech and many academics.

    Of course… not all big-tech companies would agree. I double Apple, Qualcomm, IBM and others that are true innovators agree with this definition of innovation.


  • [Avatar for Gene Quinn]
    Gene Quinn
    April 18, 2013 07:44 pm


    Excellent points.

    My first thought is that Google is being penny wise and pound foolish about their seemingly anti-patent position.

    Like you, I can’t imagine that the smart folks at Google don’t take licenses back. We know that is standard operating procedures and either they are doing that or they should be doing that. More problematic is that a senior attorney who is in Google’s policy shop in DC is out and around town explaining that Google is forced to sell patents and then have them enforced against them later. This sways public opinion, but more importantly sways decision-makers on Capitol Hill. Perhaps she doesn’t know what is going on, but it strikes me as just as harmful, which is why I wanted to expose that for all to see.

    Perhaps Google is upset about needing so many patents. I must confess that I hadn’t considered that. It seems that they really got quite a bargain, so I couldn’t imagine anyone being upset. If you want to buy your way into a field where you did no innovation buying patents and having a massive patent portfolio is what you need. Did they really expect Apple to roll over? Did they miscalculate?



  • [Avatar for step back]
    step back
    April 18, 2013 05:46 pm

    OK Anon. Now we seem to be progressing to some place.
    1) What definition do you ascribe to “innovation”?
    2) What definition do you ascribe to “invention”?

  • [Avatar for Anon]
    April 18, 2013 04:43 pm

    One (not small) problem step back is that you too misuse the word “innovation.”

    In its pure form, innovation has strictly and absolutely ZERO to do with anything in the consumer’s hands.

    Quite alarmingly the very antithesis of your “all that counts.”

  • [Avatar for step back]
    step back
    April 18, 2013 03:35 pm

    @Tom at comment #18


    “Innovation” means that the general public which receives something “they” perceive as being “new”, improved and not like your father’s Chevrolet doesn’t care where it came from, or how it came into being or whether it is truly novel in a patent sense.

    All that counts is that they (the consuming public) receive and they consume (generally in mass quantities).

    “Pet rocks” was an innovation even though it was just a rock in a box.
    Your new new, all improved model 2013 automobile is an “innovation” although it is 4 wheels, a motor and some other frills.

    Innovation and invention are not the same thing.

  • [Avatar for American Cowboy]
    American Cowboy
    April 18, 2013 02:42 pm

    Step back, there is a very significant fact that you omitted in the statement of facts in your hypothetical: The lone wolf contacted MS to offer to to license the invention. And, like many other big companies, MS asked the inventor to sign as so-called Non-disclosure agreement that in fact allows MS to use the invention without paying the inventor or alternatively go pound sand. Then when they use the invention they scream bloody murder because their victim objected.

  • [Avatar for Tom Gallagher]
    Tom Gallagher
    April 18, 2013 02:13 pm

    So “innovation” means taking (stealing?) someone else’s “invention” and making a lot of money with it in the market?

    “So if the lone wolf inventor gets a patent that blocks MS from copying and quickly moving the general-public-usable version of the concept into the hands of the general public then the patent “does” stifle “innovation”.”

    I don’t see any trolls seeking injunctions, just a reasonable royalty. That is not blocking MS, just asking MS to pay for what it took.

  • [Avatar for step back]
    step back
    April 18, 2013 02:02 pm

    Let’s go one step further on my comment #16:

    Say a lone wolf inventor in his garage comes up with a new (nonobvious and useful) software concept.

    However he does not have the finances, manpower, etc. to advertise it, implement it on a mass scale basis and move it into the hands of the general public as quickly and efficiently as, say Microsoft (with no intention here to give MS a bad name).

    “Innovation” is about the final act of moving it en mass into the hands of the general public.

    So if the lone wolf inventor gets a patent that blocks MS from copying and quickly moving the general-public-usable version of the concept into the hands of the general public then the patent “does” stifle “innovation”.

    Not sophistry.
    And accuracy of definition; which is very important to proper communication when two people use a word but not in the same way.

  • [Avatar for step back]
    step back
    April 18, 2013 01:55 pm

    @American Cowboy at comment #6

    Fighting over the definition of “innovation” is not sophistry.

    The definition is the reason why those who say patents “stifle” innovation are correct.
    It is why they can keep saying it with a straight face.

    And the fact that Gene does not appreciate the fine point difference between invention and “innovation” is the reason that he gets so bent out of shape each time one of those people correctly say that, in general, patents stifle “innovation”.

  • [Avatar for Anon]
    April 18, 2013 01:19 pm


    I was not.


  • [Avatar for Tom Gallagher]
    Tom Gallagher
    April 18, 2013 01:10 pm


    I was referring to post #8.

  • [Avatar for Anon]
    April 18, 2013 01:07 pm


    No need for sarcasm from you – your post at 9 incidates the search forum was the USPTO, and I was attempting to be helpful. There is nothinig in my post to indicate that any statement of mine needed clarification – as I had made no such statement regarding searching on Google.

  • [Avatar for MarkG]
    April 18, 2013 12:19 pm

    “First, I am really sick and tired of hearing that the Patent Office grants software and business method patents as if they are candy. That is FALSE! To the extent it ever was true it was true over a decade ago, and Michel and all those who make this false accusation either know it or they should know it. Certainly, the USPTO under the Obama Administration is once again issuing patents, but to pretend that patent examiners issue everything that crosses their desk is fanciful.”

    Gene I very much agree with your frustration. The people who state that the Patent Office makes it easy to get a software patent today never: (1) have ever tried to obtain a software patent and/or (2) provide no significant evidence supporting their arguments that obtaining a software patent is easy.

  • [Avatar for Tom Gallagher]
    Tom Gallagher
    April 18, 2013 12:14 pm


    You should also be aware that the Google search results include patents and applications both inside the US and in other countries with a lot of overlap. Still hard to count nearly 10,000 patent documents listing Google as assignee.

  • [Avatar for Anon]
    April 18, 2013 11:49 am


    You should be aware that the data sets between the patent search and publication search often have overlap.

  • [Avatar for Tom Gallagher]
    Tom Gallagher
    April 18, 2013 10:34 am

    Well, USPTO says: “Results of Search in US Patent Collection db for:
    AN/Google: 2655 patents.
    Hits 1 through 50 out of 2655”


    “Results of Search in PGPUB Full-Text Database for:
    AN/Google: 1859 applications.
    Hits 1 through 50 out of 1859”

  • [Avatar for Tom Gallagher]
    Tom Gallagher
    April 18, 2013 10:29 am

    According to Google’s own search engine, “Google” is listed as assignee on over 9,000 patent documents. Can this be?

  • [Avatar for Anon]
    April 18, 2013 10:12 am

    Gene had inquired as to my writing an article for this blog and while still immensely busy (even after the AIA critical date), I have to laugh, as this article could very well have been lifted from my mind, thought for thought, and would be an article that I would have been proud to write.

    Well done, Gene.

  • [Avatar for American Cowboy]
    American Cowboy
    April 18, 2013 09:32 am

    Lots of thoughts arise; let me share a couple.

    Fighting over the definition of innovation seems like sophistry; the question is, does the patent system overall help new things get to folks? It does when it works right. Abe Lincoln said something like “patents add the fuel of interest to the fire of genius.” What he was getting at over 150 years ago was that patent incent not only inventors but also their financial backers. The problems arise when the financial backers, instead of opting to ally themselves with the inventors to take advantage of the situation that Lincoln praised, choose to deny the inventors their share. That is what those like Google are doing.

    Google certainly innovates, by either of your definitions. But instead of rely on patents, they opt for trade secret, copyright, contract rights and sheer market dominance to maintain their competitive edge. Shunning the patent-protected inventors, they become enemies.

    The claim that Google has to pay patent trolls that they sold patents to is incredible! Frankly, Gene, it is so goofy that I have to assume you heard her wrong. First the claim that the megarich Google can’t afford to maintain it issued patents is stupefying. Second, the notion that they don’t have the good sense to dedicate them to the public by not paying maintenance fees (or even earlier in the process lettingthe application get published and then abanddoning) is equally stupefying. If that situation accurately exemplifies the state of their understanding of the patent system then everyone should know to ignore them as idiots.

  • [Avatar for Marc Ehrlich]
    Marc Ehrlich
    April 18, 2013 09:11 am

    Gene –

    Not all of big tech struggles with the issue of being “forced to sell” to those who sue. I suspect strongly that Google retains a license to the patents it sells. Suzanne is probably just unaware of this.

    What is clear however is that Google doesn’t like the fact that it has to buy patents – but that was the inevitable by-product of following Apple and MS into the mobile OS space without doing the development and getting the patents themselves… I noted in my recent post on your site

    Some readers are likely to now say – sure competition is good for innovation but why should the company pursuing the all open business model (Google for example) need to acquire patents to defend itself against its proprietary rivals? It’s a fair question, but consider the fact that Google entered the market after Microsoft and Apple who had invested heavily in mobile computing R&D for years before Google set its sights on that market. Consider also that Google was nonetheless able to enter the market and secure a leadership position in just five years. Google did not have to make the investments in R&D that Microsoft or Apple made building their proprietary OS. Instead, they purchased an open source OS and got third party hardware companies to make compatible handsets, and shortly thereafter they were competitive. The flip side of this rapid market entry is that Google did not have patents in the mobile computing area because they did not do R&D in the area. It is only rational that the incumbents would seek to defend their market position against a highly competitive newcomer that lacks patents by leveraging their patents . Their patents are the by-products of their R&D investment that was their cost of entry to the market. If firms like Apple and Microsoft did not react this way anyone could enter a market by simply copying the innovations of the incumbents, and since they would have no need to cover the cost of that R&D, it would be trivial to sell at lower prices and drive the incumbents from the market. Except there wouldn’t be any incumbents. Aware of this inevitable outcome, rational companies would not make the investment in R&D needed to create an innovative platform, only to be undercut and eliminated by copyists. So the system as it now stands enables competition between the original first moving innovator and the agile fast follower and patents help balance the equation.

  • [Avatar for step back]
    step back
    April 18, 2013 07:12 am


    This is a case where you & I will have to agree to disagree. 🙂

    I’m talking about the definition of “innovation”.

    It is not the same as that of “invention”.

    That is why two different words are used for the two separate concepts.

    There is no “invent” inside of “innovation”.

    The fact that something has been done before does not take the “new” out of In-new-vation.
    In each case the question is: “new” from the point of view of whom?

    Innovation is the case where it is “new” from the point of view of the buyer (caveat emptor not).

    Invention is the case where it is “new” (and nonobvious, and useful) from the point of view of the person having ordinary skill in the art.

  • [Avatar for Steve]
    April 17, 2013 09:10 pm

    Great article. Truth is always better than fiction.

    Now how can we get it read and taped to the foreheads of everyone in Congress, the Senate, and the President?

    Whether they like it or not.

  • [Avatar for Tom Gallagher]
    Tom Gallagher
    April 17, 2013 07:32 pm

    Excellent job, Gene! I agree with you on virtually every point. The anti-patent trollers are simply disingenuous. They remind me of a rich man’s club being forced to allow poor women to join. There shall be no cross-licensing here anymore;)

  • [Avatar for Tom Gallagher]
    Tom Gallagher
    April 17, 2013 07:28 pm

    I’m made

    I’ve made

    delete these posts when you are done with them