Unfortunately, the popular press frequently gets patent news stories wrong. I suppose this should be expected given how unnecessarily
complex patent law seems to be. When teaching aspiring patent attorneys how to pass the patent bar exam I frequently joke that drunk on a bet you could still not create a patent system that is any more complex, or dare I say screwy, than the one we currently have in the United States.
We all know that the tax code is ridiculously complex, and while much shorter the patent laws are becoming more crazy, and don’t get me started on patent procedure. There are the rules we used to follow, the rules we are currently following and the rules we will soon be following. What is even worse is that all these rules apply because the rules applicable to any patent application are typically those in effect at the time of filing. So to be fair, it is not surprising that the media get patent news all wrong.
It is unfortunate that patent news is so often incorrect though, because many inventors will rely on what they read in such reputable sources as the Wall Street Journal, for example. Now let me get my bias out in the open. I read the Wall Street Journal all the time. I am a fan. Having said that, I was surprised the other day when the Journal ran a column giving really bad patent advice to a reader letter.
The article implied you really don’t need a patent attorney because they are expensive, and that you should just send a summary of your idea around to companies. Well, patent attorneys and agents are expensive because this stuff is complicated and takes a lot of time to do correctly. As for sending your ideas around, hopefully readers know that is a bad idea, but let me reiterate… THAT IS A BAD IDEA! I wrote about this on my blog the other day in length, and I feel like I am beating up on the Journal a bit, but we need to make sure good information gets out so that inventors are not harming themselves.
Then a reader pointed me to an article published by PC Magazine regarding the new Kindle DX. This article wasn’t so bad from an inventors’ point of view, but it does illustrate just how wrong news stories can be. The article explained that the patent application originally filed by Amazon was a provisional patent application that had now gone abandoned, so there was no application pending on a dual screen Kindle, so Amazon wasn’t going to patent that.
Whether a patent will or will not ultimately issue on a dual screen Kindle I cannot say, but I can say with 100% confidence that the original application filed was not a provisional patent application, it was a nonprovisional utility application, which was obvious to any patent attorney or agent based on the first two numbers of the application serial number. If the media can get this stuff wrong, what else do they mistakenly report as true? For more on this see PC Mag Gets Kindle Story Wrong.
These two recent press mistakes remind me of a few years ago when the Blackberry patent case was still ongoing. In one situation the popular press reported that the Federal Circuit concluded that the district court erred in construing the claim term “originating processor,” but did not err in construing any of the other claim terms on appeal.
All news accounts then went on to explain that the infringement finding, was, therefore, correct. At this point those who know even the smallest amount about patent law were undoubtedly scratching their heads. How could the claim construction have been flawed and infringement affirmed? The age of the Internet is certainly wonderful in many regards, but when the first news source gets it wrong, or reports in a way that doesn’t make any sense, copying is so much easier to spot, and the copycats were out in full force with this story.
So how could something so basic have been so badly butchered by so many? After reading the opening paragraph of the Federal Circuit decision things became clear. The popular press was merely cutting and pasting the opening paragraph of the decision and reporting it as if it were the gospel truth. Judge Linn, in attempting to summarize a complex ruling in a single paragraph, explained that the claim construction was overruled but the district court correctly found infringement.
The point, however, was that the case needed to be returned to the district court to determine if the error mattered to the outcome. If the district court were to decide the error was harmless then the infringement finding would be supported, otherwise the verdict of infringement would have to be set aside. Very different indeed than what was reported.
This stuff is complicated and easy to get wrong. What this means is that inventors need to be particularly careful when choosing what information to rely upon. It is easy to harm your rights by a careless mistake, or completely by accident. It is not wise to rely on any news outlet for legal advice. The best reputable Web sites can do is explain concepts, educate you, and make you better consumers and thereby better inventors, but legal advice is like medical advice. When you need it you want advice that is specific to you and based on your situation.
Eugene R. Quinn, Jr.
US Patent Attorney (Reg. No. 44,294)
Zies Widerman & Malek
Founder of IPWatchdog.com