The Electronic Frontier Foundation (EFF) is at it again, says a patent attorney and former Northwestern University law professor, “gaslighting the public in its ongoing crusade against patents.”
While the EFF does perform some commendable work, says Michael Borella, a named inventor on more than 70 U.S. patent applications, mostly in the areas of individual privacy rights, its track record on patents amounts to “little more than a hit job.”
In an article that appeared recently in Patent Docs, Borella blasts, EFF and its “Mark Cuban Chair to Eliminate Stupid Patents,” Joe Mullin, a known patent antagonist, for writing pieces that are “full of falsehoods, deceptiveness, and bias.”
“In the patent community, we have a duty to accurately represent the current state of the law, as well as the potential unintended consequences of proposed litigation. In this way, policymakers can reach informed conclusions based on rational debate rather than sky-is-falling histrionics.”
Borella, a partner at McDonnell Boehnen Hulbert & Berghoff LLP who has drafted or prosecuted hundreds of patents, takes readers through the article pointing out statements that are either deceptive or blatantly false.
An Example
“Most importantly, the Supreme Court’s 2014 Alice Corp. v. CLS Bank decision made a clear rule—just adding ‘on a computer’ to an abstract idea isn’t enough to make it patentable.”
False. First of all, this is a poor characterization of Alice, as
the rule is much more nuanced than that. But the larger issue is that the Alice decision is notoriously vague, confusing and unworkable in practice. Eight years later, the Federal Circuit judges still argue about what it means and how to interpret it — and these are not minor disputes. The distance between their positions on Alice can be measured in astronomical units.
Tap here the full article, “The EFF is Patently Wrong.”
Concludes Borella: “While everyone is entitled to their opinions and adversarial debate can be a healthy predecessor of progress, Mr. Mullin’s unsupported claims, playing loose with the facts, and outright falsehoods are dangerous.
“A layperson reading Mr. Mullin’s article might assume that it is easy to get a broad patent granted on something that you did not invent. This is not the case.
“In the patent community, we have a duty to accurately represent the current state of the law, as well as the potential unintended consequences of proposed litigation. In this way, policymakers can reach informed conclusions based on rational debate rather than sky-is-falling histrionics.
“Taking advice from someone who touts being the “Chair to Eliminate Stupid Patents” is ill-advised if the goal is to avoid glaring bias.”
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