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Inside the Fight over US Patent Reform

"Inside the fight over US patent reform” from May/June 2009 Intellectual Asset Management - Commentary by General Patent Chairman and CEO Alexander Poltorak. An excerpt from the article appears below, or click the link below the text for a downloadable PDF of the excerpt.

From “Inside the Fight over US Patent Reform,” Intellectual Asset Management, May/June 2009:

Alexander Poltorak
Chairman and CEO, General Patent Corporation, US

I am fundamentally opposed to the proposed Patent Reform Act of 2009. The proposed reforms cover many issues already addressed by the courts; they are at best superfluous and at worst damaging to innovation in the US.

The apportionment of damages, for example, will result in devaluing patents – the currency of a knowledge-based economy – and will make them more difficult to enforce, which will inevitably slow down innovation, weaken the economy and ultimately result in job loss.

We need to strengthen our patent system not weaken it; we need to reform it, not to deform it - which is what is going to happen if this proposed legislation becomes the law.

The US patent system does need legislative reform, but of a completely different nature – reform that fixes the ills plaguing the USPTO, modernises patent law, strengthens patent protection and encourages innovation. Here are some reforms worth considering:

• First of all, we need the Congress to clarify the right of a patent owner to exclude others — that is, to obtain a permanent injunction upon the finding of infringement — regardless of whether the patent owner practices the patented invention. A patent is a quid-pro-quo for invention disclosure, not practice of the invention.
• We also need the Congress to clarify the ambiguous status of so-called business method patents, which has been thrown in limbo by the recent decision of the Court of Appeals for the Federal Circuit (CAFC) in In re Bilski.
• We need to strengthen penalties for wilful infringement. The current Bill does the opposite, making it more difficult to prove wilfulness. This will only encourage infringement and promote litigiousness.
• The Congress may also wish to consider a two-tier patent system in order to address the issues of obviousness, with which the Supreme Court grappled in the 2008 KSR case. In a single-tier patent system, break-through inventions are accorded the same patent protection as relatively minor improvements, which makes it impossible to create clear criteria of obviousness against which such diverse inventions can be judged.
• The ineffective and slow USPTO, which is clogged with patent applications it cannot process in a timely manner, is a serious problem that needs to be addressed
head-on by the legislators...but it isn’t.

One can only wonder why the Congress is not addressing real problems and is busy deforming rather than reforming our patent code.

Meet the Middlemen

GPC was one of the companies profiled in "Meet the Middlemen," an article that appeared in Intellectual Asset Management, February/March 2008. An excerpt from the article is below in PDF format. For access to the entire article, please visit www.iam-magazine.com.

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Meet the Middlemen

GPC was one of the companies profiled in "Meet the Middlemen," an article that appeared in Intellectual Asset Management, February/March 2008. An excerpt from the article is below in PDF format. For access to the entire article, please visit www.iam-magazine.com.

Patent Legislation

The Patent Reform Act of 2009 was introduced in the 111th Congress in March 2009. General Patent Corporation is opposed to this legislation, which is essentially the same bill introduced in 2007 that passed in the House but failed to gain passage in the Senate.

Click the links below for PDF versions of the Patent Reform Act of 2009 (House Bill H.R. 1260 and Senate Bill S. 515):

Patent Legislation

Congress Discusses Sales Bans on Products Infringing Industry-Standards Patents

July 13, 2012 - Following the eBay v. MercExchange ruling in 2006, courts have rarely issued permanent injunctions on products that infringe patents that are key in their respective industries. Instead, judges award damages. However, the strong precedent set by the eBay case is apparently not sufficient for lawmakers: The Senate Judiciary Committee held a hearing to discuss the antitrust implications of sales bans, and other departments of the federal government weighed in as well.

Prompted in part by the current requests before the International Trade Commission to ban imports of Apple's iPhone and Microsoft's Xbox 360 game console, Judiciary Committee Chairman Senator Patrick Leahy (D-Vt.) announced that the hearing would "further explore the competitive impact of ITC exclusion orders and whether more needs to be done to ensure consumers are not the victims of the tech patent wars."

The ITC cannot award damages, but it can ban imports of products that are found to infringe patents. That's why Motorola Mobility turned to the ITC to file its patent infringement complaints against the iPhone and Xbox.

Senator Leahy voiced his concern that since companies depend on the availability of licenses for industry-standard patents under fair, reasonable, and non-discriminatory terms (FRAND), it would be potentially devastating to develop a new product and then be refused such a license - and worse, to have that product banned.

"When inventors and developers are willing to license their technologies to one another at reasonable rates, the cross-fertilization of ideas benefits us all," Leahy explained. "But I am concerned that the recent trend of seeking exclusion orders from the International Trade Commission, rather than negotiating and seeking license fees, may have the opposite effect."

However, when a company's patent is accepted as part of an industry standard, the patent-holder is obligated to license it under FRAND terms - even to competitors. And the ITC can consider such FRAND commitments in deciding whether to ban the import of a product.

FTC Commissioner Edith Ramirez commented that although there are sometimes circumstances in which an injunction makes sense, "We do think in most cases an exclusion order (in FRAND cases) would be inappropriate."

For its part, the Department of Justice is concerned about the impact that a ban on a widely-used product like the iPhone would have on millions of consumers.

"Blocking a particular cell phone application could cause consumer harm across millions and millions of people," said DOJ Acting Assistant Attorney General Joseph Wayland. "It's the type of the practice we're concerned about, and not just the volume [of patent litigation]."

Though it was off-topic for the hearing, Sen. Leahy also took the opportunity to complain about "patent trolls" and pondered whether lawmakers could do anything to stop them.

"People who invent should be compensated," Leahy said. "I don't have a lot of sympathy for people who buy patents."

Critics Call America Invents Act Unconstitutional; Obama Administration Supports the Legislation

June 16, 2011 - The America Invents Act, H.R. 1249, seems to be making its way to a floor vote. Along the way, the bill collected many supporters and critics.

Opponents of H.R. 1249

More groups have opposed the bill than can fit in this space, but two recent letters are noteworthy.

First, there was the letter that Carl Gulbrandsen, Managing Director of the Wisconsin Alumni Research Foundation (WARF) and a technology transfer expert, wrote to his colleagues in the Association of University Technology Managers (AUTM). AUTM supports the America Invents Act, but Gulbrandsen argues that the legislation would be detrimental to innovators because it would make patents weaker and easier to invalidate. He also writes that expanding prior user rights is unconstitutional and further erodes patent rights.

Regarding the very controversial first-to-file provision, Gulbrandsen comments, "Operating effectively in a first to file system requires financial and staffing resources that are generally not available to universities or other small entities. Most universities today need a licensee willing and able to pay the patent cost before an application is filed. Under a first to file system, that will often mean the university loses the race." The full text of Gulbrandsen's letter is here.

Another missive opposing the America Invents Act was sent to Speaker of the House John Boehner (R-OH) and Minority Leader Nancy Pelosi (D-CA) on June 10 by the U.S. Business and Industry Council (USBIC), a 2,000-member group of small manufacturers and small-entity inventors. The USBIC's open letter requests that H.R. 1249 not be brought to the floor of the House of Representatives for a vote; House Speaker John Boehner allowed the vote to be postponed.

"It would be wrong for the House leadership and the White House to try to arrange a backroom deal to address all the serious constitutional deficiencies," said USBIC president Kevin Kearns. "More input from small businesses, universities, venture capitalists, and other stakeholders is necessary." The USBIC letter is excerpted here.

Glenn Beck Comments on H.R. 1249

Radio host and Fox News commentator Glenn Beck also weighs in on the America Invents Act in this video.

Obama Administration Supports

U.S. Commerce Secretary Gary Locke sent a letter to House Judiciary Committee Chairman Lamar Smith on May 31, officially giving the America Invents Act the Obama Administration's stamp of approval. Just as President Obama supported the Senate version of the bill (S. 23), his administration also supports H.R. 1249. In the eight-page letter (.pdf), Locke commented on several of the bill's provisions, a few of which are excerpted below:

First to file: "We strongly support the proposed transition of the United States to a first-inventor-to file system," Locke wrote. "It is an essential feature of any final bill that will simplify the process of acquiring rights while protecting innovators."

Locke goes on to say that this transition, being consistent with "our economic competitors," would "benefit U.S. businesses by providing a more transparent and cost-effective process that puts them on a level playing field with the rest of the world."

Post-grant review: "The Administration supports establishing a new post-grant review proceeding and retooling the existing post-grant inter partes reexamination procedure. These proceedings will serve to minimize costs and increase certainty by offering efficient and timely alternatives to litigation as a means of reviewing questions of patent validity."

Fee-setting authority and funding: "We would like to work with the Committee to provide technical changes to the legislation needed to ensure that the USPTO can make interim fee adjustments so it can best use this new authority on day one, as it transitions to a thoughtful and transparent process to adjust its fees."

The Obama Administration's willingness to "work with the Committee" on changes that would allow the USPTO to adjust its fees as soon as the bill is passed is good news for those who would like to see the agency able to set and keep its own fees. However, some Republicans are raising the cry that the section on fee-setting and funding is unconstitutional.

What's Next?

The House was expected to vote on the America Invents Act this week (June 13-17). However, as of June 14, it appeared that the House Appropriations Committee would first need proof that the provisions to put an end to fee diversion and allow the USPTO fee-setting authority do not run contra to the Constitution's Separation of Powers clause.

America Invents Act Released from House Judiciary Committee; Faces Opposition from Many Groups

May 18, 2011 - The House of Representatives began discussion on H.R 1249 − their version of the America Invents Act − on March 30, and by April 14 the House Judiciary Committee had voted 32-3 to send an amended version of the bill to the House floor for further debate and a vote. The vote is expected to come this month or next.

Efforts to remove the "first to file" provision failed, but Rep. Jim Sensenbrenner (R-WI) vowed to try again to strike it from the bill before the vote.

The reaction to the House version of the America Invents Act has been somewhat more negative than the response to the Senate's version of the bill, which passed the Senate in March.

Some of the organizations and trade associations that have publicly disagreed with various provisions of H.R. 1249 include:

● The Generic Pharmaceutical Association (GPhA), which urges its members to oppose the bill because the "supplemental examination" provision allows patent application filers to intentionally falsify information on a patent application as originally filed, and then retroactively correct the filing with no repercussions arising from the false information. GPhA says this provision "will hurt consumer access to affordable medicines and undermine the integrity of the patent system."

● The AFL-CIO, which sent a letter to House Judiciary Committee Chairman Lamar Smith and Ranking Member John Conyers. The union claims that the amended House bill "puts at risk a real opportunity to enact a law that would improve the operation of the U.S. patent system" because it "weakens important safeguards concerning time limits and standards for initiating administrative proceedings to review a granted patent." The letter continues, "Patent holders should be supported by a system that gives them confidence in the validity of their patents and guards against serial challenges."

● BIO (the Biotechnology Industry Organization), which agrees with provisions such as the switch to a "first to file" system and ending fee diversion, but opposes H.R. 1249 because of Rep. Goodlatte's amendment to the supplemental examination provision. BIO says the provision as amended "creates disincentives for patent owners to use the new procedure by having the U.S. Patent and Trademark Office...act as a quasi-investigative body."

● The National Small Business Alliance (NSBA), which disagrees with H.R. 1249 because it "would critically harm innovative small businesses − the segment of the U.S. economy responsible for job creation and breakthrough technology − for the benefit of large multinational corporations and foreign firms."

● American Innovators for Patent Reform (AIPR) continues to oppose the America Invents Act for the reasons set forth in the open letter they and eight other organizations (including the NSBA) sent to the House Judiciary Committee in March.

AIPR's What You Can Do page gives visitors various options to take action against the America Invents Act, as well as a web form that allows visitors to sign AIPR's letter explaining why House members should vote against H.R. 1249.

As Patent Reform Legislation Moves to House, Several Groups Voice Opposition in Open Letter

March 30, 2011 - Nine organizations - representing "America’s small businesses, start-up entrepreneurs, independent inventors, and technical professionals employed by companies of all sizes" - have sent an open letter to all members of the House of Representatives expressing their collective objections to the House version of the America Invents Act (S. 23, the Senate bill which passed on March 8). A PDF of the letter is here on the website of American Innovators for Patent Reform, one of the organizations that signed the letter.

Besides AIPR, signers of the letter included CONNECT, IEEE-USA, IPAdvocate.org, National Association of Patent Practitioners (NAPP), National Congress of Inventor Organizations, National Small Business Association (NSBA), Professional Inventors Alliance USA (PIAUSA.org), and the U.S. Business and Industry Council.

Patent Reform Act Passes in Senate, May Face Uphill Battle in House

March 24, 2011 - As our March Wealth of Ideas feature article explains, Senate bill S. 23, the Patent Reform Act of 2011, was easily passed by the Senate in a vote of 95-5 on March 8, 2011. The House of Representatives is now preparing its own version of patent reform legislation.

Critics of the Senate bill have noted, with some optimism, that the House Judiciary Committee might be preparing a competing bill − not just a carbon copy of the Senate bill. That speculation is based in part on the fact that the House Subcommittee on Intellectual Property, Competition, and the Internet has heard testimony from a different sort of witnesses than those who testified before the Senate.

Whereas the Senate heard from larger corporations and few (or no) independent inventors, the House has already heard from at least three prolific inventors. One of those inventors, Scott Smith, Ph.D − a professor of Mechanical Engineering at UNC Charlotte, and named inventor on 15 applications − detailed the mistake that a switch to a first-to-file patent system would be:

"Small inventors do not have the resources to engage in a race to the patent office for every potentially patentable idea," Prof. Smith explained.

"Indeed, 'first to file' might simultaneously result in a large number of poorly prepared patent applications (increasing the backlog), and a financial barrier further excluding small and very small inventors. While 'first to file' provides some measure of clarity, it does not support innovation broadly."

However, any optimism about the nature of the as-yet-unrevealed House patent reform bill must be tempered by the fact that House Judiciary Committee Chairman Lamar Smith (R-Texas) issued a statement praising the passage of the Senate bill − in particular, those portions of the bill that are most likely to harm small businesses and innovation.

Rep. Smith was enthused about the change to a first-inventor-to-file system, the post-grant review provision, and allowing third-party submission of prior art during the examination of patent applications.

"The Senate bill makes several important changes to our patent system," Rep. Smith said. "The House will introduce similar legislation this month that will help turn the ideas of American innovators into companies and jobs."

The Senate's America Invents Act contained some helpful provisions for inventors, but it's worth noting that they were not the ones named in Lamar Smith's statement. General Patent Corporation, American Innovators for Patent Reform (AIPR) and many other IP industry and small business groups will be asking their members and supporters to put pressure on Congress to get rid of patent reform provisions that only benefit larger corporations.

Patent Reform and the President-Elect: A Closer Look

In our pre-election issue of Wealth of Ideas (November 2008), we compared the technology platforms of both John McCain and Barack Obama with regard to their ideas on patent reform and patent protection - both here in the US and around the world. Now that Obama has emerged victorious and his cabinet is almost completely filled, what more do we know about his plans for patent reform?

Obama’s transition website - www.change.gov - features his technology policy unchanged from his campaign website, www.barackobama.com. No new clues there.

But we do know that Obama has chosen Reed Hundt, who was President Clinton’s FCC Chair from 1993 through 1997, to work on his agency review team in charge of international trade and economics agencies. Hundt had some interesting ideas about the US patent system and patent reform, as put forth in an editorial he wrote for Forbes.com in January 2006. Some of the highlights from that article (all quotes are Hundt’s, emphasis ours):

• “We should slash the number of patents granted each year by 90%. In 2004 the U.S. Patent &Trademark Office issued 165,000 patents. Sixteen thousand is more like an optimal number. This should be easy to accomplish because most technology should not be patentable.”

• “We need to spend more money on the system. The budget of the U.S. Patent & Trademark Office is $1.5 billion. That [budget] ought to be tripled to $4.5 billion.

• “We should introduce an element of privatization into this public system. Firms ought to be able to pay for fast-track patent approval and for the ability to challenge a patent after it's been issued. Currently it can cost hundreds of thousands of dollars to file and prosecute a patent application. For a set dollar amount - say, $500,000 - a firm ought to be able to buy a guarantee that its patent application will be reviewed and accepted or rejected within one year. The average application now takes 29 months to be processed.”

Hundt is correct that many worthless patents are issued every year (though there will be fewer in the wake of the landmark Bilski decision, which put a stop to business method patents not related to a device). He’s also right that the USPTO is overworked, overwhelmed and understaffed, and that the process of getting a patent is lengthy and arduous. But we see a lot here that should trouble both inventors and taxpayers.

Hundt’s editorial was written in 2006, before the nation’s economic woes began in earnest – but how much can we realistically increase the USPTO budget? Where will the money come from? And if the number of patents is decreased by 90%, do we still have to triple the budget?

More troubling for small businesses and inventors are Hundt’s ideas on introducing a dramatically low cap on patent issuance and allowing big companies to pay for preferential treatment and “fast-track patent approval.” Is this a “change we can believe in?”

Obama takes office on January 20, 2009, and he and the 111th Congress will doubtless have several economic fires to put out before moving on to something as complex as patent reform. We will continue to monitor the issues and report on patent reform developments here in Wealth of Ideas and also on our Wealth of Ideas Blog.

Patent Reform and the President-Elect: A Closer Look

In our pre-election issue of Wealth of Ideas (November 2008), we compared the technology platforms of both John McCain and Barack Obama with regard to their ideas on patent reform and patent protection - both here in the US and around the world. Now that Obama has emerged victorious and his cabinet is almost completely filled, what more do we know about his plans for patent reform?

Obama’s transition website - www.change.gov - features his technology policy unchanged from his campaign website, www.barackobama.com. No new clues there.

But we do know that Obama has chosen Reed Hundt, who was President Clinton’s FCC Chair from 1993 through 1997, to work on his agency review team in charge of international trade and economics agencies. Hundt had some interesting ideas about the US patent system and patent reform, as put forth in an editorial he wrote for Forbes.com in January 2006. Some of the highlights from that article (all quotes are Hundt’s, emphasis ours):

• “We should slash the number of patents granted each year by 90%. In 2004 the U.S. Patent &Trademark Office issued 165,000 patents. Sixteen thousand is more like an optimal number. This should be easy to accomplish because most technology should not be patentable.”

• “We need to spend more money on the system. The budget of the U.S. Patent & Trademark Office is $1.5 billion. That [budget] ought to be tripled to $4.5 billion.

• “We should introduce an element of privatization into this public system. Firms ought to be able to pay for fast-track patent approval and for the ability to challenge a patent after it's been issued. Currently it can cost hundreds of thousands of dollars to file and prosecute a patent application. For a set dollar amount - say, $500,000 - a firm ought to be able to buy a guarantee that its patent application will be reviewed and accepted or rejected within one year. The average application now takes 29 months to be processed.”

Hundt is correct that many worthless patents are issued every year (though there will be fewer in the wake of the landmark Bilski decision, which put a stop to business method patents not related to a device). He’s also right that the USPTO is overworked, overwhelmed and understaffed, and that the process of getting a patent is lengthy and arduous. But we see a lot here that should trouble both inventors and taxpayers.

Hundt’s editorial was written in 2006, before the nation’s economic woes began in earnest – but how much can we realistically increase the USPTO budget? Where will the money come from? And if the number of patents is decreased by 90%, do we still have to triple the budget?

More troubling for small businesses and inventors are Hundt’s ideas on introducing a dramatically low cap on patent issuance and allowing big companies to pay for preferential treatment and “fast-track patent approval.” Is this a “change we can believe in?”

Obama takes office on January 20, 2009, and he and the 111th Congress will doubtless have several economic fires to put out before moving on to something as complex as patent reform. We will continue to monitor the issues and report on patent reform developments here in Wealth of Ideas and also on our Wealth of Ideas Blog.

Excerpt from "The Patent Profiteers" by Steven M. Cherry, IEEE Spectrum, June 2004 issue

Perhaps the oldest and most successful of these [patent enforcement companies] is General Patent Corp., Suffern, N.Y. Founder and president Alexander Poltorak says his 15-year-old "full service intellectual property management company" analyzes patents and assesses their value.

A patent's value, Poltorak explains, is its ability to bulwark legal claims leveled against companies that are making money with a product or service that might be infringing. Like Acacia [Technologies Group], General Patent then negotiates licenses, or, if necessary, initiates lawsuits.

Unlike Acacia, though, General Patent doesn't want to own or be assigned an inventor's patent; it's happy to provide services and collect fees, even a share of a litigation award. "The difference between the two companies is, we are not speculating on the patents," Poltorak says.

Excerpt from "The Patent Profiteers" by Steven M. Cherry, IEEE Spectrum, June 2004 issue

Perhaps the oldest and most successful of these [patent enforcement companies] is General Patent Corp., Suffern, N.Y. Founder and president Alexander Poltorak says his 15-year-old "full service intellectual property management company" analyzes patents and assesses their value.

A patent's value, Poltorak explains, is its ability to bulwark legal claims leveled against companies that are making money with a product or service that might be infringing. Like Acacia [Technologies Group], General Patent then negotiates licenses, or, if necessary, initiates lawsuits.

Unlike Acacia, though, General Patent doesn't want to own or be assigned an inventor's patent; it's happy to provide services and collect fees, even a share of a litigation award. "The difference between the two companies is, we are not speculating on the patents," Poltorak says.

Trying to Cash In on Patents

By TERESA RIORDAN
The New York Times, June 10, 2002

ROYALTIES from inventions now earn an estimated $150 billion globally a year. With that amount expected to climb 30 percent annually for the next five years, it is little wonder that a number of patent licensing boutiques have sprung up to cash in on the action.

Perhaps the most prominent of these is ipValue, a firm that helped British Telecommunications dust off a controversial 13-year-old patent in its portfolio that the company asserts covers hyperlinking, a concept so basic that Web browsing would be impossible without it.

Similar to ipValue, albeit a smaller venture, is the General Patent Corporation, which is based in Suffern, N.Y., and run by Alexander Poltorak, a Jewish Russian dissident who fled the Soviet Union with his young family in 1982.

Unlike ipValue and others, which help large companies transmute idle patents into royalties or arrange technology swaps, Dr. Poltorak's company specializes in helping cash-strapped independent inventors pursue their patent claims against the big guys.

Last month, for example, Dr. Poltorak's company secured a licensing agreement between General Motors and John Mickowski, who claims to have invented a die-casting process that greatly reduces waste in the manufacture of machine parts. General Patent is also currently helping Mr. Mickowski with a patent-infringement lawsuit against Visi-Trak, a maker of factory equipment.

Dr. Poltorak said he learned the hard way about capitalism and the lot of many independent inventors in America. In the mid-1980's, Dr. Poltorak, who had been trained in Russia as a theoretical physicist, started his own computer company, Rapitech Systems, which developed "smart connectors," now known as PC cards — the little devices that allow a laptop computer to be hooked up to a modem, say, or these days, a DVD player.
As Dr. Poltorak recalls it, his company spent a year and a half working with Hayes Microcomputers, which was the dominant modem manufacturer at the time but subsequently went bankrupt.

When it came time to commercialize the invention, the Hayes relationship went sour. But the board of the fledging Rapitech, worried that a lawsuit would drain the company of cash, refused to pursue legal action.

Instead, in 1989 Dr. Poltorak acquired four patents from Rapitech — three that had been granted to his colleague Steven Farago and one granted to another colleague, Randy Brandt — and formed a new business to defend them in the computer industry.

It was slow going at first. "I wrote 65 notices of infringement and offers to license our technology," Dr. Poltorak said. "We did not get a single response."

After signing up with a law firm on a contingency basis and filing more than 10 lawsuits in the last six years, Dr. Poltorak said, he has managed to license the invention to 90 percent of the computer industry, including Motorola and I.B.M., for "millions of dollars." I.B.M. and Motorola confirmed that they had signed licensing agreements but declined to elaborate.

He is continuing to press his claims against other companies, filing suits last week against two California companies, AmbiCom Inc. and Askey Digital, as well as Askey's Taiwanese parent, Askey Computer.
"The unfortunate reality is that industry doesn't respect intellectual property rights," Dr. Poltorak said. "What they respect is power. If they see that an individual inventor has a patent but doesn't have any money they will routinely infringe the patent."

There are two kinds of patent licensing operations: the carrot variety and the stick approach. Dr. Poltorak acknowledges that he uses a stick, by suing or threatening to sue corporations.

"It's like having your big brother with you in the playground when the bully pushes you," said Emmett Murtha, president of Fairfield Resources International, a patent-licensing firm in Stamford, Conn. Mr. Murtha describes Fairfield as more of carrot company, although its sometimes forms strategic alliances with Dr. Poltorak.
The average cost of litigation in a patent infringement case is $2 million, which makes the system fundamentally unfair, according to Dr. Poltorak. Unless the inventor has deep pockets, he said, a patent is "really not much more than a nice certificate that you can frame and put on the wall and tell your children about."

"When Motorola and I.B.M. are in litigation against each other it works very well," he said. "It's an even playing field, it's the best system in the world. But not when it is David against Goliath."

Mark Lemley, a professor of law at Boalt Hall School of Law at the University of California, in Berkeley, said that while he was not familiar with Dr. Poltorak's company, it sounded like a natural heir of Jerome H. Lemelson. Mr. Lemelson was an independent inventor who was granted more than 500 patents during his lifetime and whose estate continues to receive patents based on applications he submitted before he died five years ago.

Mr. Lemelson, who established the $500,000 M.I.T.-Lemelson invention prize and endowed an invention center at the Smithsonian, had long asserted that many of his inventions were stolen by companies. Much of his and his estate's wealth stemmed from the "machine vision" and bar-code technology that, after extensive litigation, was licensed to more than 900 companies for more than $1 billion.

Dr. Poltorak, for his part, is uncomfortable with any comparison between himself and Mr. Lemelson.
"Jerry Lemelson would keep his patent application in the office for 20 years or more," Dr. Poltorak said. "He had long chains of applications almost ad infinitum. What that allowed him to do was see which way the industry was going and write the patents in such a way that they clearly covered this new industry. It wasn't necessarily fair because nobody knew about these patents. Mr. Lemelson saw what was happening in the industry and was simply writing around it. Those patents always irked people because they were designed to actually trap people into infringement."

That was a criticism that others also made of Mr. Lemelson while he was alive, but Gerald Hosier, the lawyer for Mr. Lemelson's estate, disputes it.

"There are instances where an applicant might game the system and manipulate it but the patent office is supposed to guard against this," Mr. Hosier said. "If there is an indictment here it is against the Patent Office. Frankly, Jerry Lemelson would have been a lot better off if his patents had issued in a timely way. He didn't see revenues until five years before he died."

From The New York Times on the Web (c) The New York Times Company. Reprinted with Permission.