Washington Post Surprised by Obvious Actions

It's been a while since I wrote an "I told you so" blog entry, so let me indulge in thwacking Timothy B Lee and the WashPo for their apparent ignorance of the obvious.

In the linked column, Lee seems to be surprised that academia is opposed to legislation that would weaken patent protection. This puts them in the company of aggressively misbehaving patent trolls, patent attorneys, and major patent holders in tech, biopharma and elsewhere. If Lee had just been reading Copyfight then this would not have surprised him as I've argued multiples times in the past that you cannot in the abstract differentiate the behavior of a research university and a patent troll.

In addition, Lee might do well to consider that if a patent "reform" proposal garners this broad a spectrum of opposition then perhaps it's not really a "reform" at all and could perhaps do with some further thinking-through. Lee seems to think that the very idea that universities make money off their patents is bad, a "tax on innovation." Perhaps that's so, but isn't that the entire point of patenting? The patent bargain is an exchange - disclose information in return for monopoly power, including the power to collect fees for use of the disclosed information.

Lee, like so many before him, is missing the point. You cannot from the outside differentiate a person driving to church from a person driving to commit a crime. Trying to outlaw driving because some people drive to commit crimes is entirely the wrong way to go about it. If we want to stop patent trolling (which I agree is a worthwhile goal) then we need to do so by means that differentiates the legitimate and intended use from illegitimate and unintended abuse.

And because it's been months, I'll just restate my two preferred starting points: limit functional claiming, and strengthen prior art requirements. Both would go a long way to removing the overbroad crap patents that are the favorite tools of the trolls.