The View From My Novel

A Rosenhan Experiment For The PTO

Cross posted at my work blog.

How accurate is the Patent and Trademark Office? Can its examiners tell good patents from bad? Many doubt that they can and the PTO is often criticized for allowing bad patents. A famous experiment from psychology – the Rosenhan Experiment – suggests a way to cheaply test whether the PTO’s examining core are doing their job effectively: send them imposter patent applications.

The original Rosenhan Experiment was an amazing, and brave, study designed to test the accuracy of psychiatric diagnoses. The study had two parts. First, Professor David Rosenhan and seven associates had themselves admitted to a variety of mental hospitals. They described auditory hallucinations and were diagnosed as paranoid schizophrenics. After they were admitted, they acted normally and waited for the hospital staff to notice. While many of the real patients noticed that the imposters lacked symptoms of mental illness, the hospital staff did not. In some cases, Rosenhan’s associates were not released for months.

In a second part of Rosenhan’s study, a hospital was told that one or more imposters would attempt to be admitted as psychiatric patients. After hearing about Rosenhan’s initial test, this institution had claimed that similar errors would not occur there. Staff at the hospital subsequently determined that 41 out of 193 patients were highly likely to be imposters. But, in reality, Rosenhan had sent no imposters to the hospital. Rosenhan ultimately concluded that “one thing is certain: any diagnostic process that lends itself too readily to massive errors of this sort cannot be a very reliable one.”

Rosenhan’s famous experiment suggests that imposter patent applications could be used to test the accuracy of the PTO’s diagnostic process. I can think of three useful imposters: 1) applications for patents on existing technology (which test the examiner’s independent literature review); 2) applications for impossible technology (which test the examiner’s technical expertise); and 3) applications that cite to invalidating prior art (which tests whether the examiner is actually reviewing the cited prior art). By sending in imposters, the PTO can evaluate examiner thoroughness and competence in all of these areas. This can be compared to the TSA’s covert testing of airport security measures. In both cases, the testing keeps the examiners on their toes.

In fact, as Rosenhan’s second study showed, even the possibility of imposter patent applications will likely make the examiners more cautious. This is a good thing. Part of the problem at the PTO is that the incentives encourage the examiners to allow patent applications. Some may object that increased caution will worsen the backlog in patent applications. But the backlog should be dealt with by increasing application fees and PTO resources, not sloppy work. Errors at the PTO are particularly costly because juries must defer to the PTO when deciding validity questions. See Microsoft Corp. v. i4i Ltd. Partnership, 131 S.Ct. 2238 (2011) (unanimously upholding the “clear and convincing” standard for establishing patent invalidity in court).

Unlike the original Rosenhan Experiment, which required Rosenhan and his associates to endure weeks in psychiatric institutions, a Rosenhan Experiment for the PTO would only require preparing a handful of fake patent applications. This would be a cheap and effective way to test PTO competence and accuracy. The results could show us where the PTO succeeds and where it fails. And if the results show consistent failure, then it would provide strong reasons for abandoning the “clear and convincing” standard for proving patent invalidity in court.

Sadly, Professor Rosenhan passed away last month. As Stanford Law School mourns his passing, we can reflect on how his pioneering work in law and psychology could be applied in other areas.

Notes:

Professor Rosenhan’s original 1973 paper, published in Science, is available here (gated link).

For some of the academic commentary on the effectiveness of the PTO read Rethinking Patent Law's Presumption of Validity by Douglas Lichtman and Mark Lemley or As Many as Six Impossible Patents Before Breakfast: Property Rights for Business Concepts and Patent System Reform by Robert Merges.

Review of Damned by Chuck Palahniuk

I'd never read Palahniuk before because I had been given the impression that his books were gimmicky and shallow.

Boy was I was wrong.

Gimmicky and shallow would be high praise for this pandering and meandering garbage. The satire is so trite that it makes Glenn Beck seem like a purveyor of subtle social commentary. And the book has the most ineptly handled final third and resolution that I have ever had the misfortune to read.

About 80 pages in I was ready to cut my losses and give up but I stupidly persisted. I want to invent a time machine and so I can go back and tell myself not to read this book.

Twitterstorm! Stanford Football!

Follow me on Twitter at @thednaze

Today's Twitterstorm after watching the Fiesta Bowl:

All posts tagged #stanfordfootball are genuine word-for-word quotes from Stanford football fans at a sports bar

There's no rivalry with Cal and UCLA, I respect those schools #stanfordfootball

We were roomates at Stanford and Oxford. That's like a Turdunken of dorkiness. #stanfordfootball

Capitalism ruins everything #stanfordfootball

This is called a drive. #stanfordfootball

It's a metonym #stanfordfootball

Now it's like the election of 1824: closer than it should be. #stanfordfootball

Their cheerleaders are all white. #stanfordfootball

I think this is all being taken out of context to make me seem like I know less about football than I do. #stanfordfootball

This is just degrading, it's called the TOSTITOS Fiesta Bowl. #stanfordfootball

If Zeno's paradox applied to football no one could get a first down. #stanfordfootball

Argh, don't put your head down, you'll get spinal compression! #stanfordfootball

That was a really bad defensive showing on that big ... what ever just happened. #stanfordfootball

Go forward! #stanfordfootball

Go around that guy! #stanfordfootball

You don't understand the ethos of Stanford do you? Excellence! Excellence! Excellence! #stanfordfootball

What a horrible way to go out! #stanfordfootball

This terrible! #stanfordfootball

When we lose, we console ourselves with having Google. And Herbert Hoover! #stanfordfootball

His hat is crooked! What's his problem? #stanfordfootball

Poor Williamson, he's going to have to go back to the campus. Though I suppose no one will recognize him anyway. #stanfordfootball

This is like Bush v. Gore all over again. #stanfordfootball

Spreading Santorum

Best headline of the 2011:

Santorum Surges From Behind In Iowa

Yes, that's a real headline.

In case you didn't know, world class homophobe Rick Santorum has a Google problem. Whether you Google Santorum or Rick Santorum, there are some interesting links among the top results. Why does Santorum have such a bad google problem? Probably because bloggers keep linking the name Santorum to Dan Savage's site.

Good luck in Iowa Rick Santorum! Santorum2012!

Mini Book Reviews

(Belated book review project explained here.)

Never Let Me Go
Kazuo Ishiguro
3 1/2 stars

This book is creepy and sad. But unlike other books I've read that were no fun at all (e.g. Coetzee's Disgrace), I didn't feel this was worth it. The narrator is so mawkish that I had trouble identifying with her and the other students. This book effectively conveys dread but not much else. I don't recommend it.

Straight Man
Richard Russo
4 stars

Reviewed here.

No Country for Old Men
Cormac McCarthy
3 1/2 Stars

Much more sparsely written than anything else by McCarthy. I found the book easier to forget than Javier Bardem's haircut in the movie. It doesn't even compare to the bloody poetry of Blood Meridian. But it's a good high-brow substitute for an airport thriller.

Will Microsoft Own Crowdsourcing?

Cross-posted at the Center for Internet and Society Blog
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The patent application has a simple title: Crowdsourcing.

Filed on May 18, 2009, the application is assigned to Microsoft and claims a “computer-implemented” crowdsourcing method. The claims seem very broad. Folks have noticed that Facebook has a pending application for crowdsourced translations. But Microsoft's application for crowdsourcing itself has, at least so far, slipped under the radar.

The ownership of crowdsourcing seems like an important question. Crowdsourcing has been in the news in the wake of the amazing paper published last week in Nature Structural and Molecular Biology. The paper reveals that players of an online game called Foldit needed only a few days to solve a difficult biological puzzle (the crystal structure of M-PMV retroviral protease) that had stumped scientists for years.

The paper notes the significance of crowdsourcing in the breakthrough:

Although much attention has recently been given to the potential of crowdsourcing and game playing, this is the first instance that we are aware of in which online gamers solved a longstanding scientific problem. These results indicate the potential for integrating video games into the real-world scientific process: the ingenuity of game players is a formidable force that, if properly directed, can be used to solve a wide range of scientific problems.

If crowdsourcing could become a major source of innovation, I worry about patents--whether from Microsoft or others--that might capture the inventive process itself.

Perhaps I'm wrong to worry. Maybe Microsoft's application isn't as broad as it appears to me. If so, Microsoft won't mind its patent application getting a little bit of attention. After all, it recently joined a crowdsourcing service that looks for prior art to knock out patents. And other initiatives, such as Peer-to-Patent, allow the public to crowdsource prior art for pending patent applications.

It would certainly be ironic if a patent on crowdsourcing was rejected thanks to crowdsourcing.

Blurring the Situation

Cross-posted at my work blog

Abercrombie & Fitch has offered to pay Jersey Shore cast member Mike “The Situation” Sorrentino not to wear its clothing. I hesitate to give this publicity stunt more publicity. But the coverage from the New York Times includes a garbled account of fair use law. The article spreads the damaging myth of the clearance culture: the false view that artists need approval for every single item of trademarked or copyrighted material appearing in a work.

Here's how the Times wades into the law:

Jordan Yospe, a lawyer who handles product-placement deals in movies and television shows, said that if Abercrombie were serious about keeping its clothing off the Situation, it would have pursued legal options rather than offering him money.

“They could try to prevent the series from airing their intellectual property without their permission,” said Mr. Yospe, a lawyer at Manatt, Phelps & Phillips in Los Angeles. Logos and labels fall under fair-use law, he said, and shows have to get approval from the owner of the intellectual property to use them

.

That’s why on so many low-end reality shows, brands are often blurred, Mr. Yospe said — the shows either could not or did not try to get approval. Abercrombie “could say, ‘Blur ’em,’ ” if they really wanted to sever the association, Mr. Yospe said.

But it is simply false that an artist needs permission for every logo or label depicted in a creative work. See, e.g., Mattel Inc. v. Walking Mountain Prods. Walking Mounting, 353 F.3d 792, 812 (9th Cir. 2003) (use of Barbie trademark in photographs fair use); Wham-O, Inc. v. Paramount Pictures, Corp., 286 F. Supp. 2d 1254, 1263 (N.D. Cal. 2003) (depiction of and reference to Slip-N-Slide toy in movie was nominative fair use). Indeed, in what I can only assume is a clumsy paraphrase of Mr. Yospe, the Times gets the law of fair use backwards—you do not need approval if something is fair use. See Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 585 n.18 (1994) (“being denied permission to use a work does not weigh against a finding of fair use”).

This is not the first time the New York Times has incorrectly suggested that approval is needed for any use of trademarks in creative works. The resulting fear and confusion around fair use is exactly why we have the absurd result of brands being blurred in reality shows and documentaries. Producers would rather deface their own work than risk a lawsuit, even if the lawsuit lacks merit. It is a sad situation indeed.

An Open Reply to PZ on Copyright

Cross-posted at my work blog

Louis Zukofsky (LZ) is the author of the very long, sometimes difficult, yet always amazing “A”. LZ died in 1978 and his son, Paul Zukofsky (PZ), owns the copyright in all of his father’s works.

Anyone interested in LZ’s poetry will likely stumble upon PZ’s open letter to the poetry community concerning copyright. In this letter, PZ asserts that any and all quotation from LZ requires express permission from PZ as the copyright holder. But the law does not support PZ’s position. I hope that this post will help prevent PZ from further chilling legitimate scholarship and commentary.

In his statement, PZ makes it plain that he does not like the concept of fair use. He writes:

Despite what you may have been told, you may not use LZ’s words as you see fit, as if you owned them, while you hide behind the rubric of “fair use”. “Fair use” is a very-broadly defined doctrine, of which I take a very narrow interpretation, and I expect my views to be respected. We can therefore either more or less amicably work out the fees that I demand; you can remove all quotation; or we can turn the matter over to lawyers, this last solution being the worst of the three, but one which I will use if I need to enforce my rights.

In case anyone has any doubt, PZ’s “narrow interpretation” of fair use has no impact on the law. It is well-settled that the views of the copyright holder are not relevant to the contours of fair use. See Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 585 n.18 (1994) (“being denied permission to use a work does not weigh against a finding of fair use”). Indeed, the possibility that a copyright holder will prevent scholarship and comment is precisely why fair use is essential.

You may think that PZ should encourage scholarship because it promotes his father’s work. PZ strongly disagrees:

I can applaud your desire to obtain a job, any job, although why in your chosen so-called profession is quite beyond me; but one line you may not cross i.e. never never ever tell me that your work is to be valued by me because it promotes my father. Doing that will earn my life-long permanent enmity.

PZ is entitled to believe that literary scholarship is a waste of time. But, once again, his personal view about scholarship has no impact on the law. Within the contours of fair use, scholars are entitled to write about, and quote from, LZ just as they would from any other writer.

PZ’s stance on fair use is reminiscent of the stance of the Estate of James Joyce. PZ might do well to consider how that turned out for the Estate.

There are lawyers, including the Fair Use Project and others, who help defend against meritless infringement claims. If you believe that your scholarship or research has been impeded because of claims by PZ, please feel free to contact us.

Joseph Conrad in Chattisgarh

As we heard the instant matters before us, we could not but help be reminded of the novella, “Heart of Darkness” by Joseph Conrad, who perceived darkness at three levels: (1) the darkness of the forest, representing a struggle for life and the sublime; (ii) the darkness of colonial expansion for resources; and finally (iii) the darkness, represented by inhumanity and evil, to which individual human beings are capable of descending, when supreme and unaccounted force is vested, rationalized by a warped world view that parades itself as pragmatic and inevitable, in each individual level of command.

The Supreme Court of India in its decision banning the practice of hiring untrained villagers as militia to fight Naxalite rebels.

Empire Falls

Richard Russo - 3 1/2 stars

Review Seven

(Belated book review project explained here.)

At this rate, I'm reviewing books slower than I am reading them and I still have about 65 to go before I catch up. I've read a couple of other Russo books since this one and they all kind of blend in together. As far as I can remember, this one was fine but I wouldn't recommend it. Straight Man is much funnier and is definitely worth reading.

So So So

The Yiddish Policemen's Union

Michael Chabon - 4 1/2 stars

Review Six

(Belated book review project explained here.)

I enjoyed the hell out of this book. I'm a sucker for the hard-boiled format in the hands of a good literary writer (e.g. Lethem's Gun With Occasional Music and Amis's Night Train). Add a waterlogged Alaskan landscape and a likable tough guy for a protagonist and you've got something pretty close to my perfect book.

But any story that starts so engagingly will struggle to keep up the magic--especially in noir, where the suspense is usually far more compelling than the plot's ultimate resolution. And this book is no exception. (The dark ending of Amis's Night Train is the only exception to this rule I can think of right now - that was like a punch in the gut). Chabon's Sitka is still super fun. I'll read this book again.

Review Five

Big If, Mark Costello

3 stars

Although Big If has a rich slate of characters, its central figure is Vi Asplund, a Secret Service agent. Vi returns to her home in New Hampshire where she is tasked with guarding the Vice President (who is running for President) during the Democratic primary. Vi's difficult brother is still living in New Hampshire and Franzenesque family drama ensues.

Published in 2002, Big If was clearly conceptualized and written before 9/11. The Secret Service in the book are focused mainly on individual nut jobs and seem unsettled about the lack of concrete threats in the post-C0ld War world--as if the Secret Service is worried that it is an anachronism. Costello had rotten publishing timing given that an even more massive and self-assured security state exploded into being just as he released the book. So Big If itself ends up feeling like an anachronism.

I read this book mostly because Mark Costello is a Yale Law School graduate and I was rooting (in the American sense of the word) for the book to succeed. I didn't end up liking it as much as I hoped I would but still reckon it is pretty good.

Review Four

Continental Drift, Russell Banks

3 Stars

I am a big fan of Russell Banks. Around 2004, when I was living in Vermont, I went on a Russell Banksathon and read a bunch of his books back to back. I strongly recommend The Sweet Hereafter and Affliction to anyone who hasn't read them. (And the movie for The Sweet Hereafter is also amazing.)

Continental Drift never grabbed me in the same way. The plot felt contrived. In Affliction, in contrast, the protagonist's problems seemed so real I could almost feel the severe toothache that afflicts him throughout the book. Reading Continental Drift, you can't shake the sense that Banks is making a point and it gets in the way of the story.

I was disappointed to read a Banks book I didn't thoroughly enjoy. Little did I know he would later inflict the execrable The Reserve on the world.