Feb 162013

The following is a post that I had originally written in 2004 when I was a law student for my old “Great Change” blog. Given that patent reform remains a salient, timely issue — ie, see President Obama’s comments from this past week — I thought it would be a good time to repost it.

Today I took my first trip to the Patent Office for a meeting. It’s in a newish building in Crystal City, Washington’s urban-planning answer to La Defense in Paris.

The meeting aside, I approached the building with a sense of reverence, in no small part because of this letter to the editor I found in the New York Times archives:

To the Editor of the New York Times:

To the majority of uninformed inventors and the hundreds of applicants for patents, the charges of an inventor that the ills of our patent system are concentrated in the United States Patent Office and its personnel should call for further investigation. Another avenue has been opened to undermine and shake the confidence of American business. Another governmental agency is charged with being corrupt and dishonest, favoring big business and destroying the initiative of the individual inventor.

With the exception of the few Presidential appointees, the entire staff of the Patent Office is under Civil Service. Promotions in the various grades of examiners are made as the result of rigid promotion examinations and length of service. The rulings of the examiners and even the Commissioner of Patents himself are subject to review of the Court of Appeals of the District of Columbia. The personnel of the Patent Office is one of the highest in the field of scientific endeavor, and the honesty and integrity of the individual examiners has always been considered as being second to none. In all my experience, both inside and outside the Patent Office, not a single charge of irregularity imputed to an examiner or appointed Patent Office official has ever been sustained.

No system built up on court decisions and past rulings of former Commissioners by which a governmental agency or bureau is guided can be perfect. Time changes all things, even the Patent Office. There may be just cause of complaint that the system is too costly; that too long a time intervenes before a patent is granted, and that the interference procedure is so complicated that court rulings are often in conflict. This condition is not the fault of the Patent Office, because the examiners are governed by Congress and the courts. It is immaterial to the examiner whether one contestant or another is successful in a litigation in the Patent Office. As a matter of fact, it may be charged that the examiners are too lenient in the granting of patents, with the result that inventors are often misled as to their limited rights and subsequently become involved in litigation. The benefit of a doubt is invariably resolved in favor of the individual inventor, and the Patent Office attempts to encourage him to reduce his invention to practice.

For years the Patent Office has not had the requisite number of employes[sic] to conduct its work with dispatch. It is one of the very few self-supporting agencies of the Government, and yet many of its divisions are months behind in their work. The Patent Office building is a relic of Civil War days, and a part of the work is conducted in the old Land Office building. There are now over 70,000 pending applications — nearly 1,350 applications for each examiner. Congress and not the Patent Office is responsible to the inventor.

Aaron L. Applebaum, New York, December 19, 1927.

At the time he wrote this letter was a patent lawyer who had also worked in the Patent Office for many years. And so it seems I will not be the first IP attorney in the family: he was also my great-grandfather.

Sep 062012

A conversation today reminded me of this post from my old blog, so I decided to clean it up a bit and repost it here:

I’ve always loved baseball. I can’t quite explain why, and it seems a little odd that I would like it at all given that my interest has received such little encouragement. My parents themselves are lukewarm about the sport, although they did sign me up for softball when I was 8. Not a naturally gifted athlete, I had to compensate with enthusiasm and a solid work ethic, which met with only limited success seeing as I was not quite popular enough to avoid benchwarming, as certain coaches only played their daughters and their daughters’ friends, of whom I was rarely one.

But I stuck with the sport because I really really really wanted to play. However, what I really wanted was to play was baseball, like the Yankee players I idolized did. For years I harbored the standard childhood fantasy of growing up to be a major league ballplayer. As it is for most people, limited athleticism proved to be an obstacle to making this dream a reality. But it was not the only obstacle.

The most significant obstacle to improving my baseball skills was that I didn’t get to play baseball. I only got to play softball. Now, I like softball. It does contain many of the same elements that baseball has: hitting a ball with a stick, throwing, catching, etc. But it contains several differences, including the tempo of the game, the size of the ball, the throwing style, et al. It’s a fun game of its own, yes, but it’s not baseball. However, because I was a girl, that’s all I got to play.

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 Posted by at 4:31 pm
May 232011

Recent news from England has had me thinking a lot about free speech lately. In discussing this with other people online, it’s become apparent that Europeans generally have very different ideas about free speech than Americans. I hope to write more about free speech, including potentially how it relates to the news from abroad. But in the meantime I also wanted to capture and republish some of my better posts from my old blog, so I thought I’d do so with this post I did on the topic. The concern about the “arbiter,” as discussed below, continues to color my thoughts on the matter. Edit: see also this post here.

I was reading this article about free speech on college campuses, and in the section about Berkeley they discussed hate speech. From the article:

At the University of California at Berkeley, the birthplace of the Free Speech Movement during the 1960s, administrators replaced the school’s broad ban on “fighting words” a year ago with a more narrow policy that prohibits harassing speech toward a specific person. Generally, hate speech is allowed against a group, but not an individual, said university counsel Maria Shanle….

It reminded me of a conversation I recently had with a German friend of mine. I would consider him (from what I know) to be of what’s generally referred to as “liberal” in terms of believing in personal freedoms, sane and rational socially-progressive policies, yet eschewing any sort of extremism, be it on the right or the left. In other words, our general attitudes toward public policy were similar.

We got to talking, though, and we realized that our respective cultural backgrounds affected our oppositional viewpoints on the subject of hate speech. My friend expressed appalled amazement that in the US hate mongers (the KKK, neo-nazis, etc.) could be legally allowed to spew their venom. “But these are lies!” he said. How could lies be protected speech?
For me, I see it less as an issue of permitting lies. In fact it has little to do with the contents of the speech at all. The problem with forbidding lies is deciding who gets to be the arbiter of what is a lie and what is the truth. Truth is often relative under the most innocent of circumstances, and history has shown that over-reaching governments frequently designate what is truth only to serve their own power-grabbing ends.

What my friend couldn’t fathom was the legal tradition which understands that equation, which understands that there are bigger issues at stake than simply being exposed to lying. It’s a belief that no idea is too dangerous to be expressed; that the true danger comes from putting someone in power over deciding which ideas can be expressed at all.

 Posted by at 3:31 pm