Wall Street Journal on the state of patent law: “Blame the Lawyers”

Today’s edition of the Wall Street Journal includes an op-ed piece on the current state of patent law, entitled “Patently Absurd.”

You can view the article here (subscription required).

The article is an attack on all things patent. Don’t worry, though. The Editors have determined the source of the problem - the lawyers.

Yep. It’s all our fault.

Patent Trolls? Yep…our fault. The article has a clever description of the so-called patent troll problem that avoids use of the “T” word while asserting a simple and disturibing message: small patent holders who don’t commercialize their inventions don’t deserve injunctive relief or even monetary damages when their patents are infringed. Their patent infringement lawsuits are “dubious,” apparently simply because of their small size and lack of commercialization. This is a strong, anti-property rights position taken by the Journal that, sadly, comes as no surprise considering previous Journal articles regarding so-called trolls.

Damn lawyers should know better than to assert the patents of these undeserving opportunists.

The surge in the numbers of patents and patent applications? Yep…that’s our fault too. Both the number of patent applications and issued patents have surged in the last two decades…everyone knows that. But, did you know that “[t]his has less to do with genuine innovation than it does with innovative lawyers filing a patent on anything that moves.” Aside from the message that sends about using patents and applications to measure the state of innovation, it completely ignores the responsibility lawyers have to their clients.

Damn lawyers should know better than to aggressively protect the interests of their clients by pursuing patent protection that complies with the patent laws. Apparently we should advise our clients to seek less than that allowed by the law.

The article closes with an instruction that seems to blame us for everything:

“Testifying before Congress last June, Josh Lerner, a Harvard Business School professor, summed up the problem: “In the past two decades, the U.S. has strengthened patent rights, while weakening the standards for granting patents.” The result is that the patent system is fast becoming a detriment to U.S. competitiveness, not to mention basic fairness. So if your BlackBerry ever does go dark, don’t curse the company. Blame the lawyers.“

Sure, they’re talking about those evil NTP lawyers that are seeking enforcement of the rights of their troll client against RIM, the maker of the BlackBerry. But read it again…and again…and again. Yep, now you’ve got it. According to the Journal, it’s all our fault.

What the article fails to mention is that lawyers, being the clever innovators that we are, have played a driving role in the current patent reform movement. The American Intellectual Property Law Association (largely a professional society for IP lawyers) played a key role in drafting the Patent Act of 2005, which the Journal article called “useful.” Sure we have differing opinions on the need for reform and the structure of some proposals, but we, the lawyers, have played an important role in advancing the debate on an amazingly broad spectrum of sweeping changes to the law. As the magnifying glass has turned onto our corner of the law, we have not shyed away. Rather, we have grabbed the handle and helped with the review. Introspection is always difficult, but I believe we can be proud of our efforts thus far, despite the uninformed criticisms of others.