Archive for the ‘patents’ tag

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

Black rocks

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I’m not sure what it is about seeing a litigator dressed in a black suit with a chartreuse polka-dot tie that sends my heart aflutter. It can’t be the chartreuse tie; the same thing happens with aqua, teal, and hot pink. It must be the black suit. Yes, that’s it. There is something about black. It’s so “take-no-prisoners”, so “I totally, completely, and unequivocally fit in”, so—well—so black.

And I’m happy to report that this undertaker look seems to be on the rise among hot-shot trial lawyers. And semi-hot-shot courtroom wannabes, too, for that matter.

This is especially true when a litigator has to meet up somewhere with another, opposing litigator, called a “bad guy.” Say at a deposition or a negotiation or in court.

To set the record straight right up front, there’s nothing that awful about bad guys, really. If you bumped into one at a gala dinner of the International Rottweiler Owners Association or even at your kid’s Saturday soccer match, you’d be perfectly comfortable chatting with him, at least until you found out he was one of the bad guys. Even then, a chat would be fine. Deep down, the good guys know full well that a bad guy is really just one of the guys. But calling him a bad guy remains de rigueur.

The confusing thing is that a good guy who is on the other side is actually a bad guy if you’re one of the good guys, and a bad guy on your side is really a good guy, even if you’re one of the bad guys (good guys?). Somehow even the average guys seem to keep it all straight. It’s so necessary that they do keep it all straight, as this is a very important part of litigating. And, of course, it makes everyone feel better to do some finger pointing.

Anyway, when a good guy and a bad guy are in a room together, say at a video-taped deposition of an inventor, they definitely are both going to do the mortician thing—the black suits and pastel ties—that takes my breath away. And this isn’t just a matter of appearance. No, sir. The good guy and the bad guy actually perform better in black. And, honestly you’re just less likely to stand out in a crowd of black suit guys if you’re wearing basic black. You know: “I see by your outfit that you are a …”

The poor videographer faces a conundrum, though. He generally is not supposed to appear IN the video. Unless something odd is going on in the deposition room. Okay, maybe he appears in a corner of the frame when he reaches for one of those cheese and bean quesadillas left over from lunch. But it’s only for a moment, so it isn’t clear whether he has to wear the obligatory black suit. Ditto the guy who slipped into the room to put the vegetarian lunch wraps and seltzer on the side board.

This good guy-bad guy mix-up probably explains why you never see one of these hot shot litigators dressed in a white suit with a chartreuse tie. A white suit sure seems like a good way to signal he is one of the good guys. But the bad guys (good guys?) on the other side would become hopelessly confused or start tittering. It’s probably just as well. I mean, try walking into a courtroom wearing a white suit.

The puzzling thing is that these litigator guys wouldn’t be caught dead in a black suit when they are dropping by Starbucks for one of those $8.95 Iced Caramel Macchiato’s. No way. They know the black suit would look dumb and be wildly uncomfortable. And the tiny spilled specks of that cinnamon whipped cream would leave grotesque grease spots in the most unfortunate places. So in Starbucks, they wear cutoffs and flip flops like any other self-respecting American consumer.

Every so often some Neanderthal litigator makes the mistake of violating the strict black and chartreuse dress code. He shows up in a dark gray suit or a dark dark gray suit. Or a dark navy suit (which frankly is pretty hard to tell from a dark dark grey suit). Or he enters the conference room sporting an aquamarine or malachite tie.