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What’s the big idea?

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Abstract ideas are a red hot topic in the patent world these days. And the frenzy has provoked some folks to adopt the wrongheaded view that ideas are a new phenomenon.

Far from it.

Look back a few centuries. After a long fallow period during the dark ages when people mostly wandered around in circles ignoring those puzzling sensations in their crania, ideas started to multiply like rabbits.

These days, more and more people are getting ideas. They are a dime a dozen (the ideas, I mean). You cannot stop them. Frankly, if it were not for all the ideas people are having everywhere, on the subway, in the bathroom, you name it, the world would be in a bigger heap of hurt than it is. In the future, count on a gazillion more ideas spilling out of people’s little brains and onto their breakfast plates next to their yogurt and cinnamon rum lattes.

In the old days, say 2010, if you had a good idea (maybe pentagonal croissants filled with pesto sauce), you went up two flights to your local patent lawyer and got yourself a patent. Your Aunt Celia threw a couple of thousand into the venture. Within a few years the New York Times was featuring your goodies in the Food section. And you were using your patent to smack down any other dough slinger who hoped to challenge your position. This made sense. It’s how we built America, mid-century. Business, government, and the press working together. Using patents. For the common good.

As we all now know, thanks to the Supreme Court, the Congress, and the patent office, big patents on big ideas are dangerous antisocial immoral claptrap. Gasp. Thank goodness we are rid of them once and for all. The world is a safer place.

Yes. The tide has swung. Today, no self-respecting Congressperson or Supreme Court Justice dares to mouth a good word about a patent. And if she did, the dazzlingly thought-leading Wall Street Journal would skewer her alive.

This flap about ideas is tricky.

The universe of ideas once was a simple enough place to maneuver. An idea was an idea. Good, bad, big, or small. You had an important new idea, you got a patent. You have a brain-dead idea, you didn’t get a patent.

You can forget all that now. The ideas world has been Balkanized: There are abstract ideas over here and there are non-abstract ideas (I like to call them concrete ideas) over there. Abstract and concrete. There is nothing else, and nothing in between.

Concrete ideas are things like the Todd Road overpass across US 101 in Santa Rosa. That was concrete for sure. It came to life one day when Sandy Mix, an engineer in the Office of Concrete Ideas of the California Department of Transportation strode into her boss’s office and announced “We need a concrete overpass on Todd Road in Santa Rosa.” And her boss jumped up, pulled the cigar out of his mouth, and bellowed “Great idea.” Notice he said “idea” without making a fine point of whether it was an abstract idea or a concrete idea. The poor doofus didn’t know the difference. But to you and me (and everyone in Santa Rosa) hers was a concrete idea, plain as day.

Here’s the key to concrete ideas: you can patent them with no sweat. But they aren’t worth much. Because nobody cares. Sandy Mix getting a patent on the Todd Road overpass would be a non-event for Clarence Thomas, your Aunt Celia, and everyone in between. Except maybe a guy who wants to build another Todd Road overpass crossing US 101 in Santa Rosa. Yawn.

Because getting patents on concrete ideas is like shooting fish in a barrel, people are going after them with a vengeance. They’re dumbing down their square abstract ideas to make them fit the round concrete sewer hole. They’re making them “substantially more” so they don’t preempt. And they’re staying away from anything that smells like organizing human activity. (Gee, I thought patents were all about human activity.) These maneuvers keep the numbers up, the boss or the client happy, and the patent machinery running slicker’n a smelt.

Then there are the abstract ideas.

The important thing to know about abstract ideas is that you get your head handed to you and go home with your brains in your pockets if you are stupid enough to try to patent one of them.

So you need to be sure you know what abstract ideas are. And that’s a puzzle. Aren’t all ideas abstract ideas? If an idea weren’t abstract it wouldn’t be an idea, right? It would be a selfie stick or a ham sandwich or an Uber app running on your smart phone.

Here’s an abstract idea: Your new skateboard sharing app. You call it the GOOBER app. Just click the FETCH button and a guy on a peanut-shaped tandem skateboard wheels up in 3 minutes, swipes your credit card, and skates you into town for the big meeting with the GC of Apex Consumer Electronics. Or say you want to get to your boyfriend’s place pronto. You text him “I’m going to GOOBER right over. See you in ten. [suggestive smiley face].”

Of course, you don’t have a clue how to make the app, but your boyfriend does. And this idea is big. REALLY BIG.

So you GOOBER over to your patent lawyer’s bunker and are told to forget it. You can get a worthless patent on the GOOBER idea if the skateboards must have turn signals. Or you can develop a headache and a pain in the wallet failing to get what you really need: a big, broad, bold, in your face patent on your abstract idea. Neither works, because, without the patent, your Aunt Celia isn’t coming up with a plug nickel for your venture.

I have a big abstract idea of my own: Retake the high ground, de-Balkanize the world of ideas, popularize the mantra “A bold broad patent is a beautiful thing.” And push the patent bashers back to the only question that matters patent-wise: is the concept new stuff or is it the same old bunkum that people have known about for years.

Just my two cents.

Written by thinker

October 18th, 2015 at 3:50 pm

Death of a patent system

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Read my lips: The American Patent System (TAPS) is dead.

Not “dead man’s bluff” dead. I mean “deader than a doornail” dead. Tomorrow morning, play taps for TAPS. And tomorrow afternoon, cut a deal for a one-time right to use that cute “He’s dead, Jim” browser-crash screen. Do be sure to tinker with it, though, to say “He’s dead, Tom.” In deference to Jefferson. Now there was a guy who “got” patents. As facilely as he got democracy. Unlike a few thought leaders of the early twenty-first century.

No matter. We didn’t need TAPS anyway. I guess. Not any more than we needed hard-nosed banking system regulation (whose silly idea was that?) or net neutrality (what nonsense) or social security (yes, social security).

I know. You think I’m Chicken-Little-ing this thing. But I’m not. If you doubt me, you haven’t pored over the recent (what seem like)  “we’re not sure we can explain why, but we’re sure patents are the devil in disguise” court opinions. Or the congress-sponsored “six ways to shoot patents in a barrel” patent reform legislation.

Brace yourself. There’s not much left to be done now before the lights are shot out and the gates locked. And ask yourself some questions. Will this spell the end of patents coming out of the patent office? It’s a good stream now, but will it soon be a trickle, and before long nothing? Will trouncing the patents that sneak out before the gates are shut require only a few hundred more of those “I can kill your patent faster than you can say America Invents Act” battles in the patent office? Will peace then  reign forever? Will hope dwindle of successful court enforcement of any patent that—by an odd miracle—survives the wars? And if the new regime gives signs of going AWOL, will more patent smashing legislation be on its way?

Who killed TAPS? Was it the kind of folk who might have missed seeing a socially useful economic incentive even if they had run it over on El Camino? Did they think of patents as nothing more than trivial road kill? Not worth a second glance in the rear view mirror?

TAPS never had a chance.

Why did we let this happen? Were we—the rag tag supporters of TAPS—too often looking the other way? Or too poor to protest? Or as fearful as young Alice when confronted by the Queen in Alice in Wonderland:

“… the Queen was in a furious passion, and went stamping about, and shouting `Off with his head!’ or `Off with her head!’ about once in a minute. Alice began to feel very uneasy: to be sure, she had not as yet had any dispute with the Queen, but she knew that it might happen any minute, `and then,’ thought she, `what would become of me? They’re dreadfully fond of beheading people here; the great wonder is, that there’s any one left alive!’”

Scary, of course. Too bad that we forgot how confidence and straight talk could have saved the day:

“The Queen turned crimson with fury, and, after glaring at [Alice] for a moment like a wild beast, screamed `Off with her head! Off–‘ `Nonsense!’ said Alice, very loudly and decidedly, and the Queen was silent.”

Maybe next time.

Just my two cents.

Written by thinker

November 30th, 2014 at 8:55 am