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Drew Clark: Why a Well-Functioning Intellectual Property System Needs to Strike Down Bad Patents

in Intellectual Property by

Editor’s Note: This past week, Drew Clark’s column in the Deseret News of Salt Lake City, Utah, was on the importance of balance in our patent system. Click here for links to all of his Deseret News columns.

ASPEN, Colo. — As with many former mining camps in the Rocky Mountains, this one is best known for winter sports like skiing. But this mountain town has also developed a summertime niche: Hosting policy-makers seeking the cool air refuge from humid Washington summers.

This year, the refreshing breeze came in from the new head of the United States Patent and Trademark Office.

For nearly 20 years, Aspen in late August has been home to a small but influential gathering of the Technology Policy Institute. It gathers legislators, regulators, lobbyists and academics who seek to shape the course of policy surrounding information and communications technology.


Distressingly enough, this year’s theme was “The Government Back in Business: Revenge of the Regulators.” Whether the topic was network neutrality, securing cyber-defense, monitoring online privacy or dealing with dated topics like subsidizing telephone service, the record of the Obama administration does suggest that regulation is back in vogue.

Which is why it was so refreshing to hear luncheon remarks from Michelle K. Lee, the undersecretary of commerce for intellectual property and the director of the USPTO.

Lee, an electrical engineer, a business executive and a lawyer, has headed the USPTO since January. Unlike other agencies that seek to control cyberspace (think of the Federal Communications Commission, the Federal Trade Commission, or the U.S. Department of Justice’s antitrust division), the patent office is less of a regulator and more of a bureau of land records.

It dutifully records, examines and certifies the “claims” that are so important to the innovation economy.

As Lee recounted, only a few decades ago, intellectual property — patents, copyrights, trademarks and trade secrets — was tangential to core business assets like factories, plants, warehouses and inventory.

By contrast, today’s inventions, designs, algorithms and brands are closer to the center of economic value. Lee cited a government report showing that one-quarter of all jobs, and one-third of our country’s Gross Domestic Product, relies upon intellectual property.

All of this talk about the value of these intangible assets is to be expected from the nation’s chief cheerleader for intellectual property. Previous heads of the patent office or the copyright office have sung similar tunes.

What Lee did that was different was emphasizing the second point: “The importance of a balanced intellectual property initiative.”

What does it mean to have balanced patent laws?

It means that the inventor of a novel creation that is useful and not obvious can obtain a 20-year grant — a patent — for the right to exclude others from making use of that particular invention.

Hence the most critical role of the patent office is its ability to assess the individual claims that inventors make when they line up at the doors of the USPTO.

In the same way that a county land records office puts the public on notice of real estate claims of other landowners, patent office decisions publicly mark the terrain of innovation that has already been trod. This helps subsequent inventors know what has already been claimed. They can instead focus on something new.

Seen from this light, it’s clear that a bad patent — a decision that grants expansive patent claims to a purported invention — is as damaging as a bad real-estate title.

Lee highlighted the patent office’s dogged determination to weed out those bad patents that might have slipped through more careful examination through its “enhanced patent quality initiative.”

“There is a cost to society if we issue a patent that should not have been issued, just as there is a cost to society for not issuing a patent that should have,” she said.

At root, issues of patent quality are lurking behind the current congressional debate over so-called “patent trolls.” That term refers to those using a bogus claim and imposing the toll of litigation on innocent entrepreneurs creating jobs and economic growth. Lee said the Obama administration supported legislation to combat abusive patent litigation.

In this fight against “trolls,” USPTO was granted a new weapon with the creation of the Patent Trial and Appeal Board in the America Invents Act of 2012.

That law allowed the patent office to beef up the number of adjudicators capable of reviewing patent challenges through an expedited procedure that must be conducted within one year, significantly shorter than the timetable for litigating patent claims in federal court.

And in the three years since the board has been in existence, it’s received 3,655 petitions challenging patent claims. That’s three times the amount that the prior director expected under the law. Of those petitions, the board has struck down 25 percent of claims challenged as unpatentable innovations.

Striking down bad claims is good. And when that kind of balance is actively advocated by the USPTO, it’s a positive sign for the future of innovation.

BroadbandCensus.com Applies for Knight News Challenge Grant to Enhance Data, Build Out Wiki and Offer Video

in Press Releases by

Blog Entries

WASHINGTON, November 1 – BroadbandCensus.com applied on Saturday for a News Challenge grant from the John S. and James L. Knight Foundation. The application, which can be viewed online at the newschallenge.org web site, lays out a plan of action for the future work of this web site.

Here’s the text of the application:

Project Title:

BroadbandCensus.com is Crowdsourcing Internet Access Community-by-Community: It’s the Building Block

Requested amount from Knight News Challenge:


Expected amount of time to complete project:

1 [year]

Total cost of project including all sources of funding:


Describe your project:

You are probably reading this on a computing device. You probably have either a wired or a wireless internet connection. You probably have broadband access. What else do you know about your broadband connection? How well does your connection work? Is your carrier limiting your bandwidth? Do your neighbors have the broadband speeds and services that they need to connect to you?

BroadbandCensus.com wants you to know everything about your broadband options. We want communities to know. The internet is international, but all broadband is local. BroadbandCensus.com understands this. We are building the knowledge base about broadband – through data, news and now through video. Just as the market for real estate relies upon public land records, the market for local broadband needs the public records of the Broadband Census.

BroadbandCensus.com allows you to find out about and monitor your local carrier, to see how your neighbors rate your carrier, and take a speed test and offer comments. We’re using crowdsourcing on the internet to share and compare knowledge about the internet. This free data about actual speed results becomes the foundation for our news and reporting about broadband issues. BroadbandCensus.com is currently rolling out a wiki with entries for every state, county, city and broadband carrier. Our reporters are writing about broadband deployments on a state and city level. We’re building communities of individuals who see the need to map out local and state broadband facilities. We’re finding the stories and crunching the data the show communities whether they have universal broadband. Working with other strategic partners in non-profit, educational and local communities, we plan to showcase and share videos helping communities pursue their digital destinies.

How will your project improve the way news and information are delivered to geographic communities?

The internet is the knowledge-pipe of today. Given the vital role that fiber, copper and wireless play in our day-to-day lives, the means of transmission must be opened up and inspected. BroadbandCensus.com does this, improving the operation of the internet marketplace one person and one community at a time.

Local communities are involved in all three of our projects: our data-gathering component, our news-stream/broadband wiki, and the video showcase we plan to release. BroadbandCensus.com displays data and news nation-wide, but our site incorporates Broadband Census Indiana and others, offering state-wide and city-wide views of the broadband marketplace. We’re also building a community through our Broadband Census for America conferences.

How is your idea innovative? (new or different from what already exists)

Commercial broadband providers know where they offer service, and where they don’t. BroadbandCensus.com wants to equalize knowledge. We provide internet end-users with data, information and video resources about the providers. As communities consider their internet options, they want the most complete information about broadband – and they want to learn and share knowledge from other communities that have offered citizens internet access. BroadbandCensus.com is the platform to freely and openly share news and data about broadband communities and about carriers. Particularly as Bells and cable operators begin to meter out bitstreams, citizen-users of their network will use BroadbandCensus.com as the neutral third party to monitor carriers.

What experience do you or your organization have to successfully develop this project?

Drew Clark is one of the toughest and most comprehensive telecom, media and technology journalists in the United States. He is widely respected for his fairness and insight in covering Washington-based internet issues. As the Editor and Executive Director of BroadbandCensus.com, which he created in December 2007 to provide the public with an objective measure of where broadband is available and which carriers offer it, Clark sees the company as an ally and partner of local communities, cities, counties and states on the all-important issue of building good internet access block-by-block.

Prior to launching BroadbandCensus.com, Clark led the “Well Connected” Project at the Center for Public Integrity. As Senior Fellow and Project Manager there, he directed all aspects of this investigative journalism venture monitoring the political influence of the communications industries. He was responsible for the five million-record Media Tracker database, the most comprehensive collection of information about media ownership. Seeing broadband as the next key battleground, he initiated the Freedom of Information Act lawsuit for local internet data at the Federal Communications Commission.

From 1998 to 2006, Clark was Senior Writer at the National Journal Group, where he was editor, writer, columnist, commentator, moderator and host of technology coverage, leading comprehensive reporting of telecommunications, privacy, antitrust, free speech and intellectual property. Clark brings the journalistic expertise, the management capacity, and the passion to stand up to incumbent interests.

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