Monday, February 11, 2008

Top Five Reasons Not To Patent


Patent lawyer Dennis Fernandez, in an opinion piece for BioITWorld
http:// com/groups/staff/portlets/expert-comment/,
seriously or sarcastically or lamentably sums up a possible outcome
of business class warfare in the U.S. in the form of the castration
of the U.S. patent system:

   1.  There is no longer any guarantee of exclusive patent protection
       (eBay v. MercExchange kills injunctions)

   2.  There is no longer current assurance of reliable patent licensing
       (MedImmune v. Genentech)

   3.  An inventor cannot seek patent protection for "merely a
       combination of old elements)
       (the nonsense of KSR - I would have titled #3 differently:
       "Obviousness is now as vague as idea/expression")

   4.  Increased damages are now extremely difficult to sanction
       against willful infringers
       (In re Seagate)

   5.  The situation is only getting worse for patent proponents.
       (continuation rules changes, apportioned damages)

His conclusion: "Without adequate reform returning rights to patent owners,
the practice of applying for U.S. patents may soon no longer be worthwhile."
But are his comments inappropriate in this industry forum?  A PATNEWS
lawyer reader comments:

   He's either a liar or a fool (and that's a non-exclusive "or"). Each
   of the cited cases had very specific fact situations that are not
   present in every business situation (especially KSR and Medimmune).
   Just because it's no longer the land rush of the past decade or so
   doesn't mean that it's time to return to the days of ignoring patents
   entirely. Getting a patent still has real value if you have a real
   invention. (So much for Fernandez' clients, I suppose.)

   Frankly, I find it unprofessional and unethical for an attorney to
   make such hyperbolic statements to the public.

Yeah, as unprofessional and unethical as the KSR decision.

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