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Mike Masnick, the "emperor" with no clothes

By Lawrence B. Ebert, Esq.

Once again, Mike Masnick took exception to a post on IPBiz. One response to Mike's content-less arguments is simply
res ipsa loquitor. But take a look at how he avoided giving any substance to his position:

IPBiz said: IPBiz notes that the National Academy of Sciences report on patents does NOT confirm what Mike says. The report of the National Academy of Sciences (NAS/STEP) did not actually find evidence of a decline in patent quality. Page 3 of the report states: "The claim that quality has deteriorated in a broad and systematic way could be, but has not been, empirically tested. Therefore, conclusions must remain tentative."

Thus, IPBiz asks Mike Masnick: where's your evidence? what do you know that the National Academy of Science doesn't know? What substance backs up your conclusory arguments?

Mike Masnick's response: As for your questions, I didn't say that there was a *decline* in patent quality. I said that a lot of bad patents were getting approved. Note the difference. One is directional, one is absolute. The NAS study was on the question of whether there was a directional change -- and the conclusion wasn't that there wasn't, but that it didn't test it. Besides, only someone making a living off of bad patents could honestly believe that bad patents aren't being applied for on a regular basis.

IPBiz notes first, Mike still did NOT present any evidence to support what he wrote [ the USPTO approving tons of bad patents ]. Mike doesn't have any evidence. Second, with the text from the NAS/STEP report staring Mike in the face, he could not even accurately recite it. NAS/STEP stated that the claim that quality has deteriorated has not been empirically tested. NAS/STEP means "tested by anyone." Thus, the NAS/STEP conclusion was not limited to a statement "not tested by NAS/STEP." Third, Mike's lawyerly distinction between directional and absolute is meaningful only if the USPTO has always "approved tons of bad patents." Even Jaffe/Lerner and Bessen/Meurer don't say that. And, finally, we are left with the fact that Mike couldn't muster a single bit of evidence to back up his tall tales.

Of Mike's query --do you think that with the massive increase in patent applications recently, that the quality of those applications has remained constantly good?--, IPBiz first notes that Mike switches gears from absolute to directional (e.g., "increase," "remained constantly"). IPBiz has no evidence to suggest that the "number of applications" is correlated with "quality," so IPBiz does not think "quality" [of submitted applications] changes with the "number" of applications. This general sort of argument, made for example by Quillen and Webster that "patent application grant rate" correlates with a lack of "quality", has been rejected by a number of authors. The USPTO, sadly, to respond to political pressure, has been dropping the grant rate, and argues that the causative factor is a drop in quality of applications. IPBiz categorically rejects the notion that the fact that applications examined in the first quarter of 2008 have a rejection rate of 44% indicates that, suddenly, the quality of applications deteriorated. [One notes, separately, that the 44% number is not consistent with Mike's "tons of patents" statement, but Mike said nothing. Mike similarly has said nothing about how the Quillen/Webster assertion of a 97% patent grant rate has been demolished.]

Mike's Techdirt piece was citing an EE Times report of a Dudas talk on Wednesday (April 16). Mike did not reference an earlier Dudas talk on March 27 which presented the same material (including the reference to the toilet queue patent). Mike did not reference commentary on the March 27 talk. Mike's always a day late and a dollar short. Ever the over-hyping incrementalist. [ Dudas, IBM's toilet queue patent, and patent quality] And, Mike missed Dudas' understated point: the IT companies pushing for patent reform are the biggest offenders in pushing silly patents like the toilet queue patent. Mike, it's not solo inventors or patent trolls that are flooding the USPTO with incremental concepts; it's IBM, Microsoft, Cisco, Apple, et al. Mike, Jon Dudas was telling you it's the IT guys who ARE the current problem.

For a recent "advance" by the IT folks, check out Apple's published application 20080091553.

***

See also

Dudas unbundled, by Mike [?]

[In the way of disclosure, Jon Dudas and LBE graduated from the University of Chicago Law School in the same year.]

Full post as published by IPBiz on April 22, 2008 (boomark / email).