12:01 Tuesday

More on the Millions - A Wag the Dog tale?

My last post on Patent No. 9,000,000 generated some buzz in a few circles, including some places that are historically not so friendly to the patent system. But while it seems indiputable that the PTO gave a little special attention to this specially marked patent, I do not believe there was any true harm caused. After all, a patent’s enforceability and validity — and ultimately its value — should be entirely independent from whatever indexing system is used to reference it. So if the PTO wants to let the public (and the press) see a nice example of the inherent “goodness” of the patent system, why not? Well…. Digging deeper, it looks like the PTO may have been doing a little more than just giving out cool numbers for the masses to admire.

First, the PTO actually has a page on its website devoted to the “x-million” patents, showcasing each one. (As of this writing, the page had not been updated with 9,000,000).  With this web page, some might argue that the PTO makes itself a direct beneficiary of its numbering scheme, selecting these particular patents and, in essence, actively trading on them in exchange for a more positive image of itself.  Maybe that’s not so bad. If the PTO were a sports arena, this page is just its jumbotron showing the kiss cam.

Second, as others have pointed out, this was not the first time there has been some jiggering of the numbers. Consider patent 5,000,000. It was not taken from Class 60 “Power plants,” which includes things like internal combustion engines and motors. On March 19, 1991, class 60 had patents issue in the ranges 4,999,991 - 4,999,999 and 5,000,001 - 5,000,005. In between, at the magic 5,000,000 mark, was a chemical patent from a different class, 435, “Chemistry: Molecular Biology and Microbiology". Why? Look at that date in history and you’ll note that these patents issued only three weeks after the end of Operation Desert Storm in Iraq. (Schwarzkopf, Powell, Scud and Patriot missiles... remember them?) Thus, with the stability of America’s oil supply in question, it probably made sense to cast the spotlight on an alternative fuels patent like this one, titled: “Ethanol production by Escherichia coli strains co-expressing Zymomonas PDC and ADH genes.” (In fact, patent 5,000,000 was funded by a USDA Alcohol Fuels Program grant.) 

Patent	Class	Assignee	Title
5,000,005	60	RollsRoyce	Combustion chamber for a gas turbine engine
5,000,004	60	Tokyo Electric	Gas turbine combustor
5,000,003	60		Combined cycle engine
5,000,002	60	Teves	Brake pressure generator for a brake system exhibiting an anti-locking control
5,000,001	60	Danfoss	Dual load-sensing passage adjustable relief valves for hydraulic motor control
5,000,000	435	U of Fla.	Ethanol production by Escherichia coli strains co-expressing Zymomonas PDC and ADH genes
4,999,999	60	Yamaha	Exhaust gas control device for motorcycles
4,999,998	60	E-Quad	Method and apparatus for elimination of toxic oxides from exhaust gases
4,999,997	60	Thiokol	Radial pulse motor igniter-sustain grain
4,999,996	60	Snecma	System for mounting a pre-vaporizing bowl to a combustion chamber
4,999,995	60	Ensearch	Clean electric power generation apparatus

Third, and most intriguing, is the case of patent 7,000,000, which issued on February 14, 2006 for “Polysaccharide fibers.” In the fifteen years since patent 5,000,000 issued, the Internet had fully developed and the blogosphere was in its prime. Naturally (?), some picked up on the story that 7,000,000 (class 536 - "Organic Compounds") was out of place from its neighbors (class 709 - "Electrical computers and digital processing systems: multicomputer data transferring").

The Daily Kos jumped on the assignee. DuPont, a known contributor to Republican PACs, may have received a thank-you from the Bush administration.  Another blogger, a Canadian librarian, didn’t suggest any foul play in the numbering, but noted that patent 7,000,000 might be “symbolic of the pressing need to invest in U.S. technological innovation and development” in order to combat the flood of low-cost textile goods from China and developing countries.

Perhaps.  But there may be a “wag the dog” angle, too. Instead of looking to what’s there, look at what’s not there. Surrounding 7,000,000 are patents related to computer communications networks, assigned to Sony, HP, Intel, etc.  And, pushed back via this maneuver, is patent 7,000,001, assigned to Research in Motion, maker of Blackberry devices.

Patent	Class	Assignee	Title
7,000,005	709	Sony Corp.	Streaming data from multiple sources according to storage location information
7,000,004	709	Sony Corp.	Streaming data from multiple sources according to storage location information
7,000,003	709	Sony Corp.	Streaming data from multiple sources according to storage location information
7,000,002	709	Sony Corp.	Streaming data from multiple sources according to storage location information
7,000,001	709	Research in Motion	Bookmark beacon system and method
7,000,000	536	DuPont	Polysaccharide fibers
6,999,999	709	HP	System and method for securing fiber channel drive access in a partitioned data library
6,999,998	709	HP	Shared memory coupling of network infrastructure devices
6,999,997	709	IBM	Method and apparatus for communication of message data using shared queues
6,999,996	709	Hussmann Corp	Communication network and method of communicating data on the same
6,999,995	709	Intel	Console redirection system for remotely controlling operation of devices on a host computer if data packet has been received during a time interval

But for the insertion of the DuPont patent, presumably RIM would have gotten all the glory. 

Why does this matter, you ask? Because precisely as this patent was issuing in February 2006, the Supreme Court had kicked back RIM’s appeal of an infringement finding -- with a possible injunction -- in litigation brought by patent holder NTP, and the Department of Defense had just days earlier filed a brief, stating that dismantling Blackberry service would jeopardize national security.  The Justice Department warned that an injunction would effectively shut down the government. (And perhaps the Supreme Court had NTP on its mind when, a few weeks later, it would hear and decide eBay v. MercExchange, making injunctive relief nearly impossible to obtain for a non-practicing entity.)

It’s not an understatement to say that the NTP v. RIM litigation became a poster child for reform of the patent system.  At such a crucial time, you can’t really blame the PTO for wanting to move the microscope away from anything remotely having to do with that case.  (In hindsight, of course, a better use for RIM's $600 million dollar settlement payment to NTP might have been to develop a device to compete with the iPhone, introduced the following year.)

Of course, we’ll never know the full story. But if you want to put on your tin foil hat and share a conspiracy theory, have at it. Perhaps we’ll get some more insight in three years or so, when patent 10,000,000 issues. 

Congratulations! (wink, wink) You're our 9,000,000th customer! (wink, wink)

Patent No. 9,000,000 issued today. It’s a pretty cool invention on a system for replenishing your car's washer fluid. And it’s actually being developed and marketed (the company says it has a “fully functional prototype.”)

But have you ever noticed that when a restaurant or store surprises its x-millionth customer with rewards, the “victim” is often photogenic or sympathetic, rather than, say, a “person of Walmart”? That makes sense, right? It’s all a big marketing opportunity for the business, which probably gets a lot of free publicity to go with it. And there’s no way for the public to verify that 1,000,000 really means 1,000,000.

So maybe we shouldn’t be so shocked that USPTO plays the same game. There’s actual evidence backing it up. Because patents issue at discrete, weekly intervals, the PTO has time generally to group patents of the same “class” together in contiguous blocks of numbers. That’s why you usually don’t see a floor wax patent immediately next to a dessert topping patent. (Unless, of course, it's for both.)

Patent 9,000,000 today is in class 210, “Liquid purification or separation”. Yet, it interrupts a block of patents from class 514, “Drug, bio-affecting and body treating compositions”:

The majority of the other class 210 patents are in a contiguous block from 8,999,153 to 8,999,176.

It doesn’t take Nate Silver to see that this is more than a statistical anomaly. Patent 9,000,000 will be giving a lot of attention to the PTO today, and it only makes sense that they’d prefer to have the discussion surrounding an interesting, everyday invention by a startup, rather than 8,999,999’s “Use of inhibitors of Bruton's tyrosine kinase (Btk)” or 9,000,001’s “Organic compounds.”

Or a non-practicing entity’s patent.

Or an airplane toilet queue.