Practice English Speaking&Listening with: Protecting Freedom In The Patent System: The Public Patent Foundation's Missi...

Difficulty: 0

>> BORIS: Welcome, everybody. Today, we have with us Daniel Ravicher, who is the Director

of the Public Patent Foundation. And the Public Patent Foundation, I think has a very important

role in our system in the United States. It gives the--it gives the public voice and injects

the public voice into the patent system and into the legal frameworks. So, one could say

that they found out the foundation is really tasked with protecting some of the freedoms

and rights that are not so often explicitly spelled that the public should enjoy from

this system. Daniel is a lecturer as well at the Benjamin Cardozo School of Law. And

let's see. I'm reading here. He started his patent law practice with Skadden, Arps, Slate,

Meagher and Flom LLP. And then, he worked at a couple of other law firms here--I'm going

to skip this, at the U.S. Court of Appeals for the Federal Circuit in Washington D.C.

He's a registered patent attorney and he writes and speaks frequently on patent law including

testifying before the U.S. Congress in the topic of patent reform and as a result of

his accomplishments and professional reputation of the--and intellectual property. Let's see,

I think we should just welcome Daniel and let's hear from him what he has to say about

the defense of the Public Patent System. Thank you.

>> RAVICHER: Thank you, Boris. Thanks for having me here and thanks for all of you for

coming. Before I get started, I'd just like to say, I'm very impressed. I've never been

to Google's Campus before. I really like the atmosphere here. I just had lunch in the cafeteria.

I think you guys--I'm very pleased to have been asked to come here and very impressed

by what you guys have going on here. So, I'm here to talk about the patent system and about

my organization's role therein. But before we get to that topic, let's just make sure

we're all in the same page because maybe not everyone here has the same familiarity with

patents. By definition, a patent is a government granted exclusive right for a limited term.

Now you may heard other words used to describe what a patent is. You may have heard the word

intellectual property. You may have heard just the word property, all these things.

Those are more atmospheric type marketing words. The true definition of patent is, it's

government granted exclusive right for a limited term. So, we're on the same page what a patent

is. Now, why does the government do this? How many people are generally in favor of

the government granting exclusive rights to other people to do things? You like government

granting exclusive rights? How many people do not like the government granting exclusive

rights to people? Okay. I'm with that group. I'm more of a conservative. I generally don't

like the government saying that, "Boris is the only one allowed to wear brown belts.

And no one else has the right to wear brown belts without Boris's permission." I generally

believe in freedom and that people should be allowed to do whatever they want to do,

although there are times when government needs to act. The role of law as you learn in one

of your first days of law school is to solve collective action problems. How many people

here have heard of what a collective action problem is? All right. So, this is--a collective

action problem is when if we all did what we wanted, we would make the world a better--I

mean, worst place. And so we all need to come together and agree not to do that thing. So

example, we'd all be better off driving on the 101 at 100 miles per hour because we get

to where we're going faster, we get to spend more time with our loved ones and friends,

and the world would be a better place for us. But if everyone in this room and everyone

out there on the 101 Freeway drove 100 miles per hour, the world would be worst because

they'd be more accidents, safety would go down, there'd be injuries, and there'd be

more pollution. And so, to solve this collective action problem, which is a way to get people

to agree and not do something that's in their own self-interest because if everyone does

it, it's to society's negative interest, is to pass law. So, the only purpose of law is

to solve collective action problems. So, what is the collective action problem that patent

law is meant to address? Well, many people think or say and even believe that it's to

incentivize innovation. That if we don't grant these exclusive rights for a limited term,

people won't make an investment into developing new technologies because if there is no exclusive

right, once they develop this new technology, they will be free ridden upon by everyone

else who didn't make those investments. And the initial developer won't be able to recoup

that investment that they made and thus, no one will ever have the first move or disadvantage

of being the one to make the investment to blaze the trail if everyone else is allowed

to come along. But that's actually not the purpose of the patent system. The purpose

of the patent system is to advance the state of technology available to the public. Now,

some people think, "Well that's two of the same things." I can show you that they're

not exactly the same although sometimes they're frequently aligned. If we were to make patents

last for a million years and we were to make patents punishable by death that would incentivize

more innovation than our current patent system because patents only last 20 years and they're

enforceable for money damages. Does anyone dispute that enlarging the power or the remedies

available for patent infringement would increase the incentives to innovate, right? So, there

is an increase in the incentive to innovate but we don't do that because that's not the

true purpose of the patent system. The true purpose is to balance the incentive with the

ultimate disclosure and the freedom to access that disclosure once the limited term ends.

And just to ask what other people think about the purpose of the patent system, we can look

at this little document called the Constitution, which some people think is relevant and Thomas

Jefferson what he had the say. So, when you get into debates with people about the patent

system, they frequently corner their debate on this, "Well you--if you reduce the strength

of patents, you'll decrease the incentive to innovate," which I usually respond by saying,

"Okay, you've convinced me, I've changed my mind. Let's make patent infringement punishable

by death and let's make patents last a million years." And pretty soon they get the point

I'm making by that absurd example. Okay, so critical of legal theory is like doing physics

and including friction, right? Most physics you learn, you learn without taking in to

consideration friction. But friction is a real world thing, so you can't solve real

world problems with basic physics because it doesn't take into account real world practicalities.

Critical legal theory borrows the same concept which says, there are personal self interest

which malign people from doing what they should do or which we could expect people to do.

This is like corruption, right? Political officials have personal incentive to take

bribes because then they have more money. So that is a problem of legal system that

has to be taken into account when creating a legal system because if you create a system

that is susceptible to such collective action problems, again, this is someone doing what's

best for them even though it's worst for society, then your legal system won't withstand scrutiny.

Some of the collective action problems within the patent system today is we have an arms

race incentive. What do I mean by that? If my competitor gets more patents, then I am

incentivized to get as just as many patents if not more because I need to defend myself.

And in return they're going to get more and neither of us are incentivized to have a moderate

level of patents because the other guy is always going to want to have more than me.

So, they have less risk of being sued for infringement than me or that they have more

threats that they can make against me. Pollution, this is a typical collective action problem

in the environmental law space and also in the patent law space. We don't have incentives

ourselves to make sure the patents we get are really strong and valid. We have incentives

to get all types of patents including those which are of questionable validity because

even a questionable validity patent is better than no patent at all. To make an example,

if a store was giving out lottery tickets and only some of the lottery tickets they

were giving out were winners, are you incentivize to take as many lottery tickets as you can

get, even knowing some of them will be losers? Of course, you are incentivize to take as

many things as you can get assuming the transaction cost of getting them is low enough and then,

you can muddle through to find out which lottery tickets are winners and which ones aren't.

So in order to address the concerns of a critical legal theorist, you have to have procedural

checks and balances which ensure that the system is not subject to these failings of

the collective action problem for the actors. And in the patent system this means basically

two things, we have to ensure high patent quality, or high quality of decision making

within the patent system, which means that we don't allow decisions to be influenced

by corruption. We don't allow decisions to be influenced by being over-burdened. We make

decisions based on substantive, deliberative, contemplative thought. And we also need balanced

policies. Now, how do you come up with a fair and balanced policy other than turning into

Fox News? Well traditionally, the way you address this issue is you ensure that all

of the interest which are affected by the legal system are present in policy making

decisions, right? Everyone should speak their turn and then the policy decision makers get

to decide where to draw the line. And not always everyone's going to win. If everyone's

heard the quote, "Democracy is two wolves and a lamb deciding on what to have for dinner.

And liberty is the lamb being well-armed with persuasion and facts to try to carry his day."

So, you can't always get what you want but if the system incorporates all of the affected

interest and what they want and what they think is good for them, then you have to have

faith that the policy makers will do what's best for all of society, which includes all

those interest. So, who all needs to be at the--included in policy making decisions in

the patent system? Who are the interests affected by the patent system? Generally, these are

the only three categories which people can think of; patent holders, patent lawyers,

and those people accused of patent infringement. Most people think if you are to draw a list

of who's everyone that gets impacted by the patent system, if you're not one of these

three people, then the patent system doesn't impact you. Well, I think that's wrong. I

think it's leaving one big group out of the question. And therefore, if you're leaving

one group of affected people out of the policy making of process, your policy isn't going

to be balanced for everyone in society. And that group is the public. We're going to come

back to some examples of how I see the public gets impacted by the patent system. Even if

your grandmother has no idea what a patent is, she still can be impacted by the patent

system. Okay. So, before I get to that, let's just take a few years back and go through

a little bit of history about where the patent system has been. About half a century ago,

40 years ago, patents were under severe attack. The entire idea of patents were completely

rejected and uncomfortable. There was an extreme skepticism about exclusive rights. So, the

second group of people who raised their hands saying they don't like the government giving

monopolies to people, this is what we had preeminently throughout the legal world in

the '60s and '70s. Part of this was driven by the expressed vision of how a patent was

inhibiting competition. There is one patent holder using a patent to keep another competitor

off the market and this resulted in increased prices, less competition, less innovation

etcetera. This is also coincided with the height of anti-trust law in the United States.

And the law in economics movement was just at its infancy. Have anyone here ever heard

of the law in economics movement? Okay, this is a theory of legal justification that's

tried to move away from morality, which is traditionally been the justification for law

and making society better by solving collective action problems. This is a school of legal

theory coming out of Chicago, which says, "Law should not be driven by morals because

those are arguable, law should be driven by what's financially good for society." So,

whatever makes more money for society is better. Whatever makes more money for companies, whatever

creates more jobs is better. And that's the law we should have and we should give up this

fight over what's good and evil. Well, this movement didn't come to preeminence until

the '80s. So, at this point, there wasn't this arm of legal theory contrasting the anti-exclusive

rights feeling. So, the result was severe oversight and hostility towards patents. Now,

in response the law in econ movement started getting published and recognized and there

started to be this divergent view of exclusive rights. Just like when I asked the question

at the beginning and some people said they're in favor of exclusive rights and some people

said they're opposed. Reasonable minds can disagree. So, there wasn't this categorical

skepticism over the grant of exclusive rights. There are also special interests expressing

the benefits to themselves of patents. Does anyone here want to guess an example of a

special interest, which is benefited by patents? Anyone want to guess? So, this drive towards--patents

help us and we're big companies and there's a debate going on about the pros and cons

of exclusive rights. And look at all the economic benefit that patents provide resulted in a

dramatic shift from oversight and hostility, to unashamed, unabashed expansion of the patent

system in the '80s and in the '90s. And perhaps the largest example of this expansion was

patent holders went to congress and they bought themselves a home court advantage. Pretty

nice. In a general legal system, you have a trial in your geographical area. So, there's

what are called district courts throughout the country. Every state has at least one.

And you do a trial in federal court in your local geographic area. And then when you appeal

that, you have a right to appeal to what's called a court of appeals. And there are 13

various courts of appeals throughout the country. California is in the 9th circuit along with

Oregon, and Washington, and Nevada. And so, you then appeal your case to the 9th Circuit

Court of Appeals. So, if there's a patent case in California, it used to go to the 9th

circuit. If there is a patent case in New York, it would go to what's the 2nd Circuit.

If there's a patent case in Florida, it would go to the 11th Circuit. And this is traditionally

how Federal Law gets developed because then, if the 9th Circuit and the 2nd Circuit disagree

on an issue, the Supreme Court sits above them to solve what are called Circuit Splits,

where you have two circuit decisions which are different from one another. And the role

of the Supreme Court overall the Circuit Court is to solve that problem. Well, patentees

were not doing very well in court. They were losing time and time and time and time and

time again. So, they went to congress and said, "We need a specific Court of Appeals

to take all patent cases from anywhere in the country. And this one exclusive Court

of Appeals would hear all patent appeals. And you need to make the judges on that court

understand how good patents are and how good for society patents are." So, congress was

more than happy to oblige. And we had created in 1982, the Court of Appeals for the Federal

Circuit, instead the 9th Circuit or 11th Circuit. CAFC, this court, it created about 25 years

ago, has routinely and categorically issued opinion, after opinion, after opinion which

have expanded the patent law. Now, even when they do things that some of us believe conflict

with the Supreme Court precedent, the Supreme Court has generally been unable to get involved

because we don't have the Circuit Splits between the Federal Circuit and any other circuit

because no other circuit is hearing patent cases. So, in its essence the CAFC had become

the de facto Supreme Court for patent cases. And they were stuffed, at least initially

the CAFC was, with judges who are very pro-patentee. In fact, several of the judges were legislative

staff to the congress people who created the CAFC. So, where are we today? In the patent

system, we have law which is exactly like law in all other systems. There's a general

fundamental theorem of law which says, the easiest type of law to get created is that

which benefits a small concentrated group while harming a large diverse group. Now,

why is that the case? Well, this small concentrated group of beneficiaries, each derive more profit

from this law or proposed law and therefore, have more resources to lobby congress, do

marketing, PR, whatever, to advance or advocate their position. Whereas, the large group of

diverse people, who are each paying a much smaller amount of cost, none of them are incentivized

to fight the movement of the law against their interests. I already discussed the judicial

bias of pro-patents and in patent expansion to the CAFC. And the USPTO, which is the administrative

agency relevant in the patent system itself, has been directed by congressional and judicial

bias towards patent systems to implement policies and make decisions in favor of patents. So,

nowhere in here--if we go back a few slides. So, we have patentees, they are part of the

small group which benefit from patents, patent lawyers like myself. I have a job because

of the patent system. So, I'm generally in favor of its existence. So, there's part of

the small group that benefit from the patent system. Accused infringers, now you would

think they'd be part of the people who are opposed to patent system but in reality, a

lot of the accused infringers are part of the first group of patentees themselves. So,

while they may want sometimes a little bit fixing of the system, they're generally in

favor of an enlargement of the system just like patentees because they are patentees

themselves. But the public's interests in the patent system are not being represented.

So, when the three branches of government failed to represent the public interest, what

traditionally happens and has happened over time is you have civil society or public interest

groups created. And that's why I left private practice, some five years ago to start my

organization which is a 501 C3 non-profit, whose mission is to represent the public's

otherwise, unrepresented interest in the patent system. And particularly, the public interest

against low quality and unbalanced policy. Now, there are two main concerns that I and

my board and staff have. One is the threat the patent system poses to the public's economic

interest. The other is the threat to civil liberties. Now, I'm going to get into more

specifics in just a minute, so if you want some examples, just hold on. Now, what we

do when we determine there is a threat worth our time and effort, is if there's specific

patent or group of patents which are causing an extremely harmful threat to society, we

will undertake an administrative procedure to challenges patent. That administrative

procedure is called a reexamination. We do our own scientific and technical research

into the patent to see if it's valid. And if we believe it isn't, we send evidence to

the PTO asking them to revoke the patent because we have found some new evidence that proves

it wasn't a new idea or it wasn't a non-obvious idea. For a class of threats, we will advocate

for a change in policy, so that those threats are addressed up at the beginning of the process

not downstream at this specific patent stage. Okay, so what are some examples of patents

that have caused economic threat to the public? One large area where patents harm the public

is in the pharmaceutical industry. Patents are used by pharmaceutical companies to bar

entry of competitors and namely brand name pharma uses patents to preclude generics from

entering the market. This causes a net negative--if the patent is unjustified, that is an undeserved

monopoly. And so, the pharmaceutical company seeking what's called rents or extracting

undeserved profits from the marketplace by being able to charge this undeserved monopoly

and taking those profits out of society. So, when Medicare pays for prescription drugs

or your health insurance is more expensive paying for prescription drugs because of an

undeserved monopoly, that's a net negative economic effect on society. Human embryonic

stem cells, there is one patentee which owns a collection of patents on basic human embryonic

stem cells in whatever form they exist. They were using these patents preclude other people

from doing research. I think that harms the public. I think it's good for the public,

for anyone who wants to do research to be allowed to do it. And I don't think patent

law whose purpose is to advance science should be used as a tool to preclude anyone else

from doing research. Monsanto is a large agricultural company. They had patents on modified beans

and modified seed. And farmers would buy these seeds, plant them, save some for the next

season and plant those. Well, Monsanto said that was patent infringement. And they went

around suing dozens of farmers, putting many of them in bankruptcy and taking their family

farms because they said, "Well, what you're doing violates our patents because you still

are making and using our patented modified seeds." Now, my concern in this case wasn't

so much on the substance of the patents but on the fact that a lot of these farmers didn't

have the resources to even hire a defense. You shouldn't be allowed to win a legal case

just because the other side can't hire a lawyer. I think there's something fundamentally unfair

about that. In software and business method patents, we have to ask, and there's a healthy

debate going on, including a book by Bessen and Meurer, which was recently published,

about whether or not introducing patents into these industries causes an increase in innovation

or decrease innovation. So, let's ask a couple of people who have been in the software industry

what think. And I'll let you read the quote for a minute. If anyone wants to take a guess,

I don't have any prize to offer you but other than the respect and admiration of your peers.

All right, so this is one that people have heard a lot. So, Bill Gates said, "We are

forced to patent as much as we can." The sound--this is the arms race, which I mentioned earlier,

right? "We're encouraged to waste all this money getting as many patents as we can."

I thought this is a very honest statement and this is a very helpful statement. Okay.

Here's harder one. That one was easy. This is the advanced class. Don't be shy if you

have a guess. Yell it out. No guesses? Come on, who? No. Bori said you people were smart.

Come on. That's a hard one. That's pretty obscure. People have heard a Cisco, right?

So, this is pretty--don't listen to what Dan Ravicher has to say about software patents.

Listen to people actually in the software industry, what they say about patents. And

they say they're a waste of time and money. We're not doing any more innovation than we

would otherwise because we are intensivized not by patents. We're intensivized by the

needs of our customers in the marketplace. So, one has to ask, "Is there legitimate reason

to have patents in industries that cause a drag in innovation instead of a spur to innovation?"

So, what are some policies that I frequently propose and that you could debate yourself

that would help protect economic interest? One would to eliminate injunctions as a matter

of law. If we look at patent law purely as an economic vehicle, then, so long as the

defendant is capable of paying some amount of money, they should be allowed to do what

they want. So, here is a hypothetical. Let's say, I had a patent on the cure for AIDS.

Now, there's nothing in patent law where it requires me to make this cure for AIDS or

to allow anyone else to make the cure for AIDS. I can sit on it and I can laugh at all

the people with AIDS if I want to. Okay. And let's say, Boris came along and he wanted

to make the cure for AIDS available to people in the United States. I can sue him and get

an injunction to prevent him from doing that. How many people think that make sense? Yeah,

it's ridiculous, okay. But injunctions make patents stronger. And that benefits the small

concentrated group of patentees. So, anytime you talk about restraining injunctions or

possibly eliminating them because they make no economic sense, they get very threatened

and they say, "You're going to decrease the incentives for innovations." And pharmaceutical--we're

never going to come up with new pharmaceutical drugs and all these kind of parade of horribles.

But if you think about it economically, there's no economic justification. Sure--as long as

there is a price and the judges job is to decide what's a fair price for Boris to pay

me to practice my patent. I'm not saying Boris should be allowed it to do it for free but

we should go to court and the judge should decide what the fair price is. But I shouldn't

be allowed to preclude someone from practicing my technology. This goes back to the software

one. If patents aren't increasing the rate of innovation in an industry, they should

get their nose out of it. That's an extreme position I know, but it's one that I hold

on to. There should be an exception from patent law for research. How many people here today

thought there was an exception to patent infringement for research? Lots of people, right? It's

a common misconception. Don't feel bad. Lots of people think--how could the patent system,

which is suppose to encourage research be used to actually stop research? It's true.

There is absolutely no exception from patent infringement for research. It seems ridiculous

to me. Now, of course, if after your research you've come up with a marketable commercial

product, now you need to negotiate with the patentee for license. But why should the patentee

in the human embryonic stem cell case be the only one allowed to do human embryonic stem

cell research? They shouldn't. That doesn't make sense. And we also had to make sure that

the procedural goals of the patent system are accomplished. And that's not--that's not

a non sequitur. That's not something to be taken for granted. It's very difficult to

address abuse and manipulation in gamesmanship in any legal system. Okay. So, what--in what

ways, if any, do patents threaten civil liberties? Well, there are 2 types of freedom. There

is procedural freedoms and substantive freedoms. And most non-lawyers don't even recognize

procedural freedoms. They think of substantive freedoms, like freedom of speech, freedom

of the press. Procedural freedoms, you know as the right to a fair trial, the right to

a jury trial, the right to be represented if you're arrested and accused of a crime.

These are rights that you have in a fair process. And in the Monsanto farmer case, I'm concerned

about the procedural harms caused when a patentee who is well-resourced, alleges patent infringement

against a defendant who can't even afford to hire an attorney to defend them. I think

that's unfair and I think that's a perverse violation of their right to be fairly represented

in court. We see this also in the software space. We see patent holders who go around

intentionally suing single or two-person owned websites for patent infringement. They'll

send them nasty letters or they'll file lawsuits against them knowing that that defendant has

no ability to hire an attorney to come and defend them. And they're basically at the

whim of the patentee to accept some type of $50,000 or a $100,000 pay-off to go away.

In addition to the procedural concerns that I have, there are also substantive constitutional

concerns that I have about the patent system. So, what are some examples? I don't know if

you guys can read this or not. This is a patent issued in 2001 on a method and apparatus for

delivering electronic advocacy messages. Everyone see the title. How many people have never

seen a patent before? Everyone seen a patent before? Okay, so. So, this is an example of

what the patent is trying to cover. "Dear representative, I think you should vote aye

or nay on a particular bill." This scares me a little bit. It scares me that the United

States Government is saying, "Juno Online Services is the only party in all of America

allowed to do this thing. And if you want to do this thing which is send email to your

representative asking him to vote aye or nay, you need to call up Juno and ask him how much

its going to cost." Now, people say, "But Dan, you're chicken little, right. Juno would

never assert this patent." I'd rather it not exist in the first place. Why doesn't--why

does it exist in the first place? This shouldn't--this type of a patent should not exist. There should

not be a patent on how to email your elected representatives to express your position on

some law. Okay. What's another example? This is an electronic voting system patent. And

for those of you that may or may not know, the boundaries of a patent, the legal four

corners of the patent are defined by single sentences at the very end. And these single

sentences are called claims. And they actually start with the language "I claim a table having

a top and four legs." And therefore, you just go around you say, "Do you have a top and

four legs? If yes, you infringe my patent, if no, you don't." So, here is the first claim

of this patent. And I'll give everyone just a minute to read it through. I'm sorry, if

you guys in the back if you can't read the text. So basically, this is an electronic

voting system with a computer, an absentee ballot manager agent. Sounds like software

to me or maybe it's just some guy with a pencil, either way, we're not sure. A mobile memory

unit, a paper ballot, the absentee-ballot-manager-agent has a means for creating electronic representation

of the ballot and storing the result in the database. Now, who thinks the owner of this

patent should be the only person in all of America to be able to do this thing? Somebody

owns stock in this company or you've never heard of them before? So, when someone says

patents can never influence my right to vote, patents can never influence my right to freedom

of speech, to advocate my legal opinions to my representatives, they don't know what they're

talking about. Now, here's a--here's a really obscure one. Anyone want to guess what this

is a patent on? This is a patent of one of the most safest and effective ways for a woman

to undertake her constitutional right to have a first trimester abortion. Right, RU-486.

There's nothing in the law that would preclude this patent from being acquired by the right

to life coalition and using this patent and asserting it against any woman who wanted

to exercise her constitutional right and preclude her from using this technology, absolutely,

no defense. How many people have a problem with that? I have a problem with that. You

don't have to express your political opinions in front of your peers if you don't want to.

I have a problem with that. >> The patent is issued in 1986, so, isn't

the threat almost over? >> RAVICHER: Yeah, it expired in 2006, right?

But you can sue people for six years but tomorrow there maybe another safer and a more effective--right.

But good catch. Maybe these people are smart. The question was the patent is issued in 2--1986,

so isn't the threat almost over? Yes. So, what are some policies that I advocate that

could help protect civil liberties from the patent system. One is anything that relates

to the exercise of a civil liberty should be excluded from patentable subject matter.

That's pretty simple. Secondly, how many people have heard of fair use? Right. It only exists

on copyright and trademark. There's no such thing as a fair use of patents. I think that's

wrong. I think there should be a fair use of patents. And we also should ensure that

no one looses a patent case or is forced to pay a license fee to patentee simply because

they can't access legal representation. Okay, are there any lawyers in the room other than

me? Okay, if you have any lawyers--one, okay, just for you sir, one slide. Now, if you have

any lawyers who are friends and they stink when you start talking about patents. "Oh,

you don't know what you're talking about patents are no big deal. Patents don't impact anything."

Just pull up this patent. And this threat is not over, sir. This was just issued on

2003. So, for at least the next 15 years, no lawyer in the country is allowed to do

these things without the permission of Luis Calvarine I think he lives on West 50th Street,

which is in my neighborhood. Thank you very much for your time. I'll be happy to hear

your questions and comments. >> [INDISTINCT]

>> RAVICHER: Yes, sir. >> So, with regard to software and business,

you know, method patents. I've always thought that even if they would be patentable, they

should be patentable for a lot less than 20 years. I mean, is that a possible way to address

some of these issues. Let's just make certain classes of, you know, or certain industries

or certain classes of issues have a much shorter time limit?

>> RAVICHER: That's a proposal that some people make. Of course, the problem is you start

getting into line drawing between what gets 20 years and what gets 7 years.

>> Right. >> RAVICHER: And it's difficult to say, "Well,

what is a software patent?" If it's purely just an algorithm or a method patent, that's

an easier case but what if it's actually a hardware claim but the hardware is generic

commodity processor and memory and it's really the software which is doing the result. So,

it's hard to draw the line. But even beyond that procedural and critical legal theorist's

critique of that proposal, the more important one is that patents lasting for 20 years aren't

a good thing for the software industry. So, making them weaker or less isn't going to

make them more of an incentive, right? >> Right.

>> RAVICHER: And they're not an incentive development. If people aren't making advancements

because of the patents today, why have them at all? Well, the answer is because they make

patent attorneys really rich. And they make patent holders really rich. And that's the

reason why we have patents on software and business methods.

>> So, what is your organization actually doing to lobby against, you know, patents

in software and what not because I am curious. >> RAVICHER: We've participated in several

briefs on this issue including one at the Supreme Court arguing that patents on software

are not eligible. When you make this case and people think that you are a little bit

radical and you're not economically intelligent, you can tell them that Eli Lily, also a large

pharmaceutical company, submitted a brief to the Supreme Court and Microsoft and AT&T

arguing that software should not be patentable. So, if I'm crazy for arguing this, so is Eli

Lily and very few people would call Eli Lily crazy.

>> Right. Thanks. >> RAVICHER: So, that's a good proposal you

came up with but I don't think it addresses the problems which we currently see.

>> Right. And I mean, I look at it as something if, you know, if we can't get them completely

abolished maybe, there's a way to, you know, to at least reduce their, you know, their

harm. >> RAVICHER: Yeah. Okay, thank you very much

for your question. >> Thank you.

>> RAVICHER: Yeah. Yes, sir? >> With the upcoming presidential election,

of course, a lot of rhetoric out of both sides, but do you have an opinion on which candidate

is more likely to improve the patent system? >> RAVICHER: No, they'll both be captured

in the same way the legislative process is by small concentrated group of beneficiaries

who express their opinions. So unfortunately, I don't--on this issue it will not be my determining

factor when I go to the ballot, which in New York I can tell you my vote is very important.

Yes sir, in the back? >> [INDISTINCT]

>> RAVICHER: All right. So, the question was, can I comment on the behavior of some people

filing patent application and claiming, they're only doing so in a defensive way. Well, I

understand why they're doing that. It's the arms race mentality, right? It's what Bill

Gates said. Everyone has to get as many as patents as they can. And so, I don't critique

people for doing what's in their interest just like, you know, I don't get mad at cockroaches

for coming onto my counter when I leave food out, right? They're just doing what's in their

natural best interest. What I would suggest to this people is to make their defensiveness

posture something that's reliable in the public. Issue a statement, issue a formal binding

message saying we are getting these patents and we promise never to sue someone for infringement

unless they sue us first. This is Cisco's default policy and it was well-known throughout

the industry that Cisco has a no-first punch policy. And that's fine. I mean, we can have

the arms race. We can go back to 1980 where everyone was getting all their weapons. And

we have to ask, as a society, "Is it worth like--is your job--should they fire you, so

that they can hire me to file some patent applications?" I don't think it's good for

society for me to be working and you not to be working because I think you're going to

do a more productive work for society, writing code or whatever it is you do here, than I

will by pushing papers into the patent office. Next question. Yes, sir?

>> Could you describe a little bit more how in this example you have of the RU-486 being

used as a way to perform to an abortion? How the patent holder would conduct a lawsuit

to prevent that behavior if there's no provable monetary loss to the patent holder?

>> RAVICHER: It doesn't have to be monetary loss because they can go after an injunction.

And they probably wouldn't sue women themselves. That would be kind of bad PR. They'd probably

sue any manufacturer of RU-486. Now people say, "Yeah, but Dan that's not true. If somebody

has patent on something, then they're definitely making it, right? They're not just going to

sit on the patent? That whole, "I've got the cure for AIDS and I'm not going to make it,"

that's ridiculous hyperbole." Well, if you do a search for non-gas engines, who do you

think some of the biggest owners of non-gas engine patents are? People who have no incentive

to make non-gas engines because that's disruptive technology to their business model, and so,

there are absolutely incentives for people not to practice their own patents. And so

in the RU-486 case, they'd probably go after the manufacturer of the drug or whoever is

paying for the procedure like health insurance companies for inducement of infringement,

you know, but they could--there's nothing stopping them from suing a woman as she walks

into a doctor's office, nothing at all stopping them. And they could get an injunction barring

her from doing that. Thank you, for your question. Any other question? Yes, sir?

>> So, I spent a year at a patent law firm writing patents applications as an engineer.

And I'm responsible for several obviously unpatentable pieces of junk. So, it became

clear... >> RAVICHER: That's like three Hail Mary's

and leave something in collection [INDISTINCT] >> It became clear to me that the--that the

time and resources and ability available to me was so far outstripped any patent examiner's

time and resources. What do you propose to do about that problem?

>> RAVICHER: Well, the patent office is absolutely correct when they say, "We don't have the

resources to do a good enough job." Well, that's because the job they're being told

to by congress is issue as many patents as you can, as fast as you can, because more

patents is good for society. And why is congress saying this? Because the lobbyist who just

left their office with $100,000 check says, "Patents are good for society. So, tell the

patent office that." If the patent office was directed to behave in a different way,

they would do so. I know several people in the patent office. I think blaming the patent

office is a myopic and incorrect view of the patent problem. They're like blaming the muffler

for pollution when it's really coming from the engine. So, the patent office is not where

the fix happens because they're not the cause of the problem. And in fact, in the software

business method area, not only in the mid '90s where they--fighting against software

and business method patents and it was the Court of Appeals for the Federal Circuit that

forced them, to allow them, they are now again trying to fight against software and business

method patents. And now, they have a big case called Bilski at the CAFC, where they may

actually get the CAFC to go back. So, in a lot of areas, I've seen the patent office

as actually trying to do the best thing they can. But they've hamstrung on purpose by congress

to do what lobbyist want them to do, which is benefit the small concentrated group, which

profits from patents. Thank you for your question. Well, any other questions or comments? Thank

you--yeah, one more. >> Is there something that could be done about

professional patent trolls who basically buy opted patents and go around abusing them with

no intent to ever manufacture anything? Is there a [INDISTINCT] suited to that?

>> RAVICHER: Well, I don't have anything against patent, what people call patent trolls or

patent--these are companies who sold business models to buy patent and go around threatening

people or actually suing people and making money. And that's all they do. They don't

make any product or service. A lot of these people don't even have phone numbers. They're

basically just front organizations for lawsuits. I don't blame them because they're doing just

like the defense patenting. They're doing what's in their own financial interest. This

is collective action problem. They're doing what's best for them even though it's not

good for society, for people to go around chilling conduct and chilling researches by

being a drag on resources. So, the solution is in some cases, specific threats to address

them through patent challenges. And several of the patents which we have challenged to

have been owned by businesses that you call patent trolls. But in a more general way,

it's to eliminate the threat of injunctions and say, if you're not practicing your patent,

you can't get injunction from someone else. All you can get is some reasonable royalty

rate. And the judge is going to determine that. And I think that would go a long way

towards rewarding these people, which they deserved. They invented something, they deserve

some reward. But they don't deserve to be a drag on innovation or have the right or

ability to hold up someone else who does want to make the cure for AIDS or does want to

make better search technology available. So, I don't think you--again, with the patent

office, you don't solve the problem at the patent trolls. It's the problem that's caused

upstream. And that's just where you are seeing one of the symptoms. Okay. And this is our

homepage. So, this is a list of matters we've done where we've done specific patent challenges.

Patriot Scientific is one example of a patent licensing company and so is the Forgent JPEG

patent, which you may have heard of. And then these are some advocacy work that we've done,

as well. So again, thank you very much for your time. If you have questions, you want

to talk in private or email me or give me a call anytime. I'll be more than happy to

talk to you. Thanks so much.

The Description of Protecting Freedom In The Patent System: The Public Patent Foundation's Missi...