"We've seen all this before," adds Marshall C. Phelps Jr., Microsoft's recently named deputy general counsel in charge of intellectual property. Phelps, who joined Microsoft recently after spending 28 years helping IBM become the world's top patent acquirer, said that new technologies are always born and that the system always adapts over time.
The key, he said, is to improve the quality of the patents issued.
But to critics, the system is used primarily by big companies to shake down the little guy, and they are even suspicious of some of those now calling for reform.
"Those of us who work with emerging technologies have been living with this," said Silicon Valley attorney Gary L. Reback, who often represents start-ups in battles against large, entrenched competitors. "But it has gotten so badly out of control that companies the size of Intel are beginning to be disadvantaged."
Reback often tells the story of how a team of IBM patent lawyers went to Sun Microsystems Inc. in the 1980s and claimed that the then start-up was infringing on seven of its patents.
After Sun engineers explained why they were not infringing, the IBM lawyers responded that with 10,000 patents, they would be sure to find some infringement somewhere, Reback says.
Instead, Reback said in a 2002 Forbes magazine article, IBM said Sun could "make this easy and pay us $20 million." After some negotiation on the amount, Sun cut a check.
Jerry Rosenthal, IBM's vice president of intellectual property, denied that the incident occurred the way Reback described. He said IBM supports several improvements in the patent process, including additional challenge procedures.
"But we need to get off this issue of too many patents," he said. "It's the quality of patent." That view is generally shared by the powerful community of patent lawyers. The American Intellectual Property Law Association also supports increasing patent application fees to provide more resources to the patent office.
Gregory Aharonian, publisher of a widely read patents newsletter, said that companies could have pushed long ago for improvement at the patent office.
Instead, they tend to benefit more from low-quality patents than the occasional entrepreneur that might come along and shut them down.
Aharonian thinks software and Internet patents are legitimate. The problem, he said, is that most of those that are granted shouldn't be.
What's needed is much more rigorous research into prior art, and higher standards.
"I would love it if Intel would give me one of its buildings" to build a patent research facility. "I'd buy all the old user manuals; that would be very useful. Just give me one week's worth of Andy Grove's stock options."
http://www.washingtonpost.com/wp-dyn...2003Dec10.html