Archive for the ‘Supreme Court’ 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

Alicide. The IP crime of the century.

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When it comes to clarity in court-made law, I don’t expect much. And, after scratching my head for a few months over the Supreme Court decision in the Alice case, I think my low expectation has been justified.

Can you blame me?

The Court built its Alice decision on an old legal rubric—the so-called “abstract idea”. They seem to view it as a wicked thing, if it’s what you’re trying to patent. That nasty phrase first got slipped into the court decisions way back in the twentieth century. Or was it earlier? Ever since then, whenever this “abstract idea” nonsense gets channeled into a court opinion, you can count on the patent being turned into dead meat. And recently the slaughter of patents by lower courts, armed with Alice, is at a fever pitch.

This wholesale killing of patents needs a moniker.

I propose “Alicide”.

Alicide follows a simple formula: 1. Abstract idea? 2. Cadaverous patent flesh! You can just about bank on it.

But why should patents on good technology-advancing ideas get turned into moribund animal muscle over such a meaningless  catchphrase? The question begs an answer. Yet we are far from getting one. In spite of (or maybe because of) today’s furious rate of patent bashing.

In the opinions, there is the obligatory hand waving, of course, and nods are made to earlier decisions. Yet those prior pronouncements on the “abstract idea” mantra were just as hard to decipher.

I don’t get it. Why is there so little insightful guidance in the opinions on this “abstract idea” incantation that is the “ready, aim, and fire” of Alicide? Is the answer that killing these patents is a goal too compelling to let the quaint need for a enlightening explanation get in the way? Is setting out a workable definition of “abstract idea” too tedious? Too hard? Too dangerous?

This cart-before-the-horse facet of Alicide reminds me of the gloss on justice offered by the Queen in Through the Looking Glass:

‘No, no!’ said the Queen. ‘Sentence first—verdict afterwards.’

‘Stuff and nonsense!’ said Alice loudly. ‘The idea of having the sentence first!’ … ‘I never heard of such a thing!’

‘—but there’s one great advantage in it, that one’s memory works both ways.’

… ‘What sort of things do YOU remember best?’ Alice ventured to ask.

‘Oh, things that happened the week after next,’ the Queen replied in a careless tone … ‘For instance … there’s the King’s Messenger. He’s in prison now, being punished: and the trial doesn’t even begin till next Wednesday: and of course the crime comes last of all.’

Like jailing the King’s Messenger, writing opinions may be easier when the author’s mind has fixed on the outcome first. Then the task of clearly explaining the result can be treated as no more than an annoying detail. That tactic had been worked out long ago by Justice Stewart in the punch line of the 1964 Jacobellis pornography case: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”

However amusing his clever comment may have been in the context of a pornography case, we should resist accepting it when the topic is patents. Especially patents that matter to the vitality of early stage ventures. Let’s not forget that these start-ups mill the grist for an important seat at the American economic dinner table.

If no one else will breathe clarity into this mess, the patent office should. It has been presented squarely with a chance to bring sanity to Alicide. And it has taken the first step in its recent “2014 Interim Guidance on Patent Subject Matter Eligibility.” That document is a start, but we need much more. And soon.

To move more decisively, the patent office should host a formal public rule making proceeding that gets down and dirty, specific, and clear on what “abstract idea” means. And ends with written principles that have the legal force of an agency rule. The patent office has the power to proceed this way. And it ought to.

Then we can get on with the work that the patent system was meant to do. In a rational way.

And make Alicide history.

Just my two cents.

Written by thinker

January 31st, 2015 at 3:09 pm