08 March 2008

The Patent-Blog 'Outing'

Yes, there is a corner of the blogosphere devoted to the debates over patent and copyright law. It includes, for example, blogs like this one.

Such blogs split into two opposing camps.

There are those, like "Patent Hawk," who think that IP is a crucial means of rewarding innovation, that some sneaky corporate interests are always trying to piggy-back off of other people's innovative ideas, and that accordingly patent rights need to be strengthened (the public domain narrowed) pro bono publico. Greed is good.

Then there are those (we might as well call them "patent doves"!) who believe that intellectual-property claims have gone much too far, that "trolls" are using patent claims to disadvantage productive businesses, and that a lot of the ideas now claimed as someone's property belong more properly in the public domain.

One of the more prominent of the patent doves has called himself Patent Troll Tracker, and for a long time kept his 'real' identitya secret. But he has been outed as a California lawyer named Rich Frenkel.

The 'outing' exercise itself is inside-baseball, but the intellectual complexities of the underlying debate are fascinating.

Consider the meaning of the word "obvious." A simple enough word, of transparent (self-referential!) significance, right? Maybe not. The U.S. Supreme Court wrestled with this last year, in KSR v. Teleflex.

The pertinent statute says that no patent shall issue when "the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains."

That seems to require the courts to engage in an exercise of hindsight. "It was obvious that peanut butter would mix well with jelly between two pieces of bread, wasn't it?"

Anyway, I'm just glad I can enjoy a PB&J sandwich now and then without paying whoever made the first one. That'll conclude my IP cogitating for now.

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Knowledge is warranted belief -- it is the body of belief that we build up because, while living in this world, we've developed good reasons for believing it. What we know, then, is what works -- and it is, necessarily, what has worked for us, each of us individually, as a first approximation. For my other blog, on the struggles for control in the corporate suites, see www.proxypartisans.blogspot.com.