[IP] Re: Is This Foreshadowing of American Innovation? [Respectfully, some clarification]

[David Farber <dave@farber.net>]

Begin forwarded message:

From: Scott Moskowitz <scott@bluespike.com>
Date: June 25, 2009 5:04:31 PM EDT
To: Ross Stapleton-Gray <ross@stapleton-gray.com>
Cc: David Farber <dave@farber.net>
Subject: Re: [IP] Re:     Is This Foreshadowing of American  
Innovation? [Respectfully, some clarification]

Hi Ross, It's, Scott. Been a while. 10 years?

Not quite ... Are trademarks "innovation" in the same sense?

We have criminalized copyright infringement and most patent  
infringement as determined by actual litigation is amongst large  
entities. Infringement has been mostly constant  as per the USPTO  
statistics and PriceWaterhouse private study on litigation trends  
(2008). But, the plaintiff only prevails 50% of the time at an average  
of $4-5 mil per case. Trademark is about $400-500K per case, if memory  
serves.

Trademark misuse occurs everyday - just look at how trademark owners  
interpret use of their trademarks in Facebook search? Or, as key words  
in Google AdWord use? The Patent Act is meant to encourage enabling,  
public disclosure of invention. Contrary, folks keep trade secrets.  
I'd prefer Kerckhoff's Principle applied to innovation, just as it is  
in cryptography.

The fact is we cannot know the value of a patent (people do not buy  
technology per se: they buy goods and services) because it's value may  
be viewed positively (asserting exclusionary rights), negatively  
(preventing someone else from making such an assertion against the  
party) & in view of other business activity (an inventor who chose not  
to practice his inventions - "NPE" or "trolls").

Discouraging patents is poor industrial policy & even poorer  
innovation policy. Oh, and the Trademark section of the USPTO is  
running a surplus ... That is being sought to cover the budget  
shortfalls in the Patent section ... "Non sequitur", indeed.

Hope you are well!

Sincerely,
Scott



On Jun 25, 2009, at 2:50 PM, Ross Stapleton-Gray wrote:

> At 11:35 AM 6/25/2009, Scott Moskowitz wrote:
> > As for bad patents, I've read, seen and heard plenty of bad books,  
> > music, movies, brand names, etc.
>
> This is something of a non sequitur.  You might have a point, if I  
> could, by slipping a broad trademarking of the name "Harry" past an  
> inattentive PTO, subsequently sue J.K. Rowling out of the magical  
> English school tales market.
>
> Ross





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