Another inventor defends patents without discussing his own — Hillary Clinton listens up.

Does every "independent inventor" who defends the patent system have a backup plan to play the patent-lawsuit lottery?

Scott Spinucci might. He owns SpinDVD, a New York company that makes DVD's with games, films, and advertising in them. Dennis Crouch points today to an April article in which a Pennsylvania newspaper describes Spinucci pushing his way through a crowd to ask Hillary Clinton if she'll take his side in resisting patent reform.

"Will the candidates side with big business or the little guy?" Spinucci asks. "It's as simple as that."

But a quick check of patent records shows another side to Spinucci's defense of the little guy. He has a specious and broad business method patent application in the works. It describes his "invention"—simply, the idea of stopping a DVD to click and go to an advertiser's web site. The application is complete with a flow chart of ideas that could have been penned by an above-average 14-year-old who knows what product placement means (see right).

Spinucci's broad application seems like nothing more than a description of the direction the entertainment business is clearly headed in: connecting viewers more directly with advertisers. Extending an incredibly generous benefit of the doubt, maybe Spinucci was the first guy on the planet to think of letting DVD viewers stop their DVD and use the Internet—but should his reward be a 20-year "ownership" of that idea, with a patent to block any competitor who dares do the same thing?

One can imagine the list of companies Spinucci might sue with such a patent. It might look a lot like the list of companies he works with now: Warner Brothers, Dreamworks, Sony/BMG, NBC Universal, and others, according to his website. Do these media giants know they're working with somebody who's building such a legal weapon?

Spinucci also made a YouTube video asking presidential candidates to oppose take a position on patent reform. He doesn't, of course, mention his own patent application.

UPDATE: Spinucci responded to this post and objects to my take on this. His comment and my response to it can be found in the comments section.
 

Comments

[Nicole]

Nice find! How different is this really to members of the Coalition for Patent Fairness that point fingers at "patent trolls" while each of these multi-national companies have developed aggressive licensing departments of their own.

[kk]

This situation reminds me of a visit I took to a museum with my artist brother. We stood looking at an abstract painting that had three blue lines running down a white canvas. I said, "How is this art? I could have done that!" My brother replied, "But, you didn't."

You say that the idea "could have been penned by an above-average 14 year old who knows what product placement means". And, I agree, this idea seems rather simplistic. But, coulda shoulda woulda. He didn't. Why should we paint Spinnucci a bad apple for filing a broad application that "seems like nothing more than a description of the direction the entertainment business is clearly headed in." If Spinnucci came up with such a prescient idea, and can draft claims that are found allowable and valid by the USPTO, then why shouldn't he be able to require licensing fees from the big guys who use his idea, no matter how simple it may be? Dreamworks, Sony, et al. could also have filed such a patent application, but they didn't. I say, more power to the Spinnuccis of the world.

Thanks for your article. I always enjoy reading your blog!

[Joe Mullin]

KK,

Thanks for your comment.

From a legal perspective it's a clever strategy (or, could be considered if he gets the patent—we'll have to see). But from an economics perspective, it would be very tough to make an argument that such a claim promotes innovation, which is justification for government-imposed patents. If basic ideas are patentable, it will create "pay-to-play" zones that discourage competition, and we're all worse off.

I would also argue that there's no market value here in the idea in and of itself. Don't get me wrong, Spinucci's software might be awesome; I have no idea; but I do think his product and his competitors should be judged in the marketplace, not at the patent office.

[kk]

Joe,
Thanks for your response.

Maybe I am missing something... When does a patent claim "promote" innovation in your view? It almost seems like you are arguing for abolishing patent protection altogether.

Perhaps Dreamworks, Sony, et al. will see the Spinucci application and decide to work on a design around, and come up with a totally different (and better) way of doing this? That would be promoting innovation, would it not?

Also, it seems to me that "pay to play" zones offer a huge incentive to invent another (better) way to accomplish similar tasks.

[iplaw]

Mr. Mullin makes sole solid arguments. Despite the classic David v. Goliath themes underlying this debate, the fact is that small inventors take advantage of the system by seeking patents on very broad ideas. The issue is not about licensing a particular form of technology, it is about creating an unfair monopoly on a business practice that holds businesses hostage and, as Mr. Mullin points out, hinders innovation. The practice of patent trolling makes it impossible for businesses to design alternative products because there is no way to find a better or different type of technology when the entire concept has been cornered. The ultimate ruling in the Bilski case being heard by the U.S. Court of Appeals will give help decide how far to extend the patentability of methods.

[kk]

Iplaw,

Your post faults "the system". However, it seems your real target is the poor examination that so often comes out of the USPTO these days. If a small inventor overclaims, it is the PTO examiner's job to police this overreaching.

However, it is certainly NOT a fault of the patent system itself.

If a patentee has a valid patent with claims that have been reasonably judged by a competent examiner as being novel and non-obvious over the best prior art available, then there should be no issue with the patentee exerting his legal rights in licensing the idea to any business that would like to use the idea.

Please don't advocate destroying the system merely because PTO management is failing their responsibility to the US public.

[Scott Spinucci]

OK, Joe Mullin, I’ve taken the bait. Fine. I do have the courage of my convictions however. That’s why I asked Sen. Clinton her position on Patent Reform. As an inventor and entrepreneur I wanted to know her position on the Bill (Hey, I’d like to know Sen. Obama’s and Sen. McCain’s position as well; now there’s a story for you Joe).

First question: why are you so biased in favor of the Coalition for Patent Fairness? Why do you continue to tell big lies over and over again? I may not have attended Berkeley but my news-writing professor at Slippery Rock would have failed you simply for the numerous factual errors in your “article” posted on your blog. I’ve addressed those errors with the facts in brackets below.

I guess it’s hard for me to understand how someone like you, who supposedly has a Master’s degree in Journalism from Berkeley, do such a terrible job of “reporting” – unless of course you have ulterior motives. Just like the original article was erroneous in reporting that I “pushed and shoved my way to the front of the crowd,” your article continues to build upon lies in attempt to somehow make them true. Why would any reporter do such a thing? That’s the problem with media today. Some reporter’s are much more interested in making a name for themselves than actually reporting the news; not make up the news to fit their point of view, like you did. I guess the more outrageous reporters are, the better the chance they have of “selling papers” or getting on TV as an “expert” pundit. I would love to send Joe’s blog entry to his former journalism professors and your current editor to see what they think about the innuendos, false insinuations and hyperbole that makes up your “article” from May 20. One could imagine from reading his “article,” that Joey’s “reporting” is malicious, reckless and misguided at best. Unfortunately, no matter how false blogs may be, there’s no way to really rectify those lies in today’s “Google” economy. So, if a prospective client or investor “Googles” me, he will find Joey’s blog entry from a IP reporter. Doesn’t matter how erroneous or fallacious the entry may be, it will always be associated with my name. That’s just wrong. Of course, Joe knew this when he wrote the article.

Below is Joe’s Mullin’s Blog (Prior Art) entry with corrections in brackets.

http://thepriorart.typepad.com/the_prior_art/2008/05/another-inventor-defends-patents-without-discussing-his-own-hillary-clinton-listens-up.html

(Blog entry begins:)

Does every "independent inventor" who defends the patent system have a backup plan to play the patent-lawsuit lottery? (Does every IP “reporter/blogger” from Silicon Valley have a secret plan to work for or take kickbacks from the Coalition for Patent Fairness companies that some bloggers defend while blindly dismissing the facts.)

Scott Spinucci might (Yeah, I “might” do a lot of things, like sue you for libel ;-)). He owns SpinDVD, a Pennsylvania company (Fact: it’s a New York based company) that makes DVD's with games, films, and advertising in them. Dennis Crouch points today to an April article in which a Pennsylvania newspaper describes Spinucci pushing his way through a crowd (Fact: I never pushed anyone and the author of the article knows this “making my way through the crowd” doesn’t sound dramatic enough I guess) to ask Hillary Clinton if she'll take his side in resisting patent reform (Fact: that was NOT the question).

"Will the candidates side with big business or the little guy?" Spinucci asks. "It's as simple as that." (This quote was taken out of context and was never asked of the candidate - Sen. Clinton.)

But a quick check of patent records shows another side to Spinucci's defense (what defense?) of the little guy. He has a specious and broad (Fact: the patent application is neither Specious nor Broad. If the “reporter” would actually do more than a “quick search” he would know this) business method patent application (Fact: It’s more than a Business Method Patent) in the works. It describes his "invention"—simply, the idea of stopping a DVD to click and go to an advertiser's web site (This statement is inaccurate. Being put into a position to defend myself on a Patent that is Pending is just one of the issues I have with the Patent System – i.e. the 18-month reporting rule that is harmful to inventors and ultimately our fragile economy – especially with a “pendency rate” now over 31 months. More importantly, this “rule” is un-Constitution). The application is complete with a flow chart of ideas that could have been penned by an above-average 14-year-old who knows what product placement means (see right). (First off: many inventions “could have been” invented by people with even the intelligence of the “reporter” who wrote this post.)

Spinucci's broad application (It’s anything but broad) seems like nothing more than a description of the direction the entertainment business is clearly headed in: connecting viewers more directly with advertisers (“the reporter” makes no sense at all and obviously did a quick read of the application because he’s wrong again.) Extending an incredibly generous benefit of the doubt (little sarcasm their Joey? Weak!), maybe Spinucci was the first guy on the planet to think of letting DVD viewers stop their DVD and use the Internet—but should his reward be a 20-year "ownership" of that idea (Even a 14-year old knows one can’t “own” an idea), with a patent to block any competitor who dares do the same thing? (Where do I begin my response to this asinine paragraph …? Who are you working for Time Warner? Disclosure: I once worked for TW.)

One can imagine the list of companies Spinucci might sue with such a patent. It might look a lot like the list of companies he works with now: Warner Brothers, Dreamworks, Sony/BMG, NBC Universal, and others, according to his website. Do these media giants know they're working with somebody who's building such a legal weapon? (Where do I begin with asinine paragraph # 2? I honestly believe this is an attempt to discredit me and discourage investment in my company’s technology. I guess, following the “reporter’s” logic, one could imagine that the “reporter” is on the payroll of one of the Coalition for Patent Fairness companies. Hey, according to The Godfather II, the Mafia had reporters on their payroll too – so...)

Spinucci also made a YouTube (I didn’t make it, C-SPAN and You Tube did) video (http://www.youtube.com/watch?v=J88qyGPJX6k) asking presidential candidates to oppose patent reform (Truth is: I asked that voters ask the candidates where they stand on the Patent Bill since it was supposed to go to the floor for a vote and neither the popular media nor voters knew much about it). He doesn't, of course, mention his own patent application. (The question I asked was: “what I thought was the most important issue in the election.” I answered: the Patent Bill before Congress. After all, the three presidential candidates are Senators – America ought to know how these candidates plan to vote, since the Bill - S.1145), as penned, would harm the US economy and inventors. I asked voters to ask the candidates where they stand on the Patent Bill – instead of the media concentrating on the same topic over and over again. Why not ask them about a topic - like the Patent Bill and have them debate it on national TV. The patent debate ought to be elevated to the level of a national debate? I guess the reporter’s “friends” would not like that too much. Obviously, even someone with the “reporter’s intelligence and a cursory knowledge of Intellectual Property, knew that my patent was searchable. I mean the first thing I said was that I was an inventor – after all. What exactly are you trying to insinuate here Joey?)

(Article Ends)

My Comments Continued:

So Joe Mullin, why hide behind your blog? Why didn’t you just give me a call and ask me some questions like a real reporter would? Better yet, why don’t you do your job and call the presidential candidates and ask them what they think about the Patent Bill? Then maybe I wouldn’t have to. I guess a reporter worth his salt would have done that – especially an IP reporter. Also, this is not my first invention. My first patent application was in 1990 – when our patent system was strong and not ravaged by greedy multinationals with an agenda. But that’s a different story.

While it’s impossible to be objective as a journalist, why not at least try and be fair next time? Since you are part of the story now and have your opinions, why don’t we have debate about this topic and perhaps invite a real, credible reporter to do a story on it?

[Joe Mullin]

Scott, thanks for your response. Sorry you're upset.

I'll respond to your response here:

You say the article has errors but don't cite any actual errors that I can see, other than the main office location of your company, which I couldn't tell from your web page but am happy to change. I also agree that my description of your YouTube video wasn't quite spot-on, so I'll change that as well.

As to 'hiding behind my blog' — I don't know how this would even be possible; a link to my publication and my email are at the top of the page. You used neither. This post was just my commentary on a news article that popped up on a prominent patent blog. I didn't call you because I don't call everyone involved when I'm commenting on another news source. Since reading your response I've left you a voicemail (no response yet) and sent you an email (which bounced back saying your box is full).

What I wrote about your application was my opinion. It sounded pretty darn broad to me. You say it's "more than a business method patent." Well, great, but that doesn't make my post inaccurate. You're invited to explain it to me better if you like and I'll include it in the post.

You say I repeat an inaccuracy about your body language in the article I linked to—I'm not going to take responsibility for the accuracy of what they wrote, and it's a minor point in any case. Call them and get it corrected if it bothers you. As to taking your quote "out of context," (that's why links exist).

You also say my portrayal of your YouTube video is inaccurate. I think it's fair to say you are opposed to the bill, but "We need to send a message to the candidates to pay attention to some of the other issues out there."

As to your company's location, your web page shows offices in both Pennsylvania and New York; you were quoted in a Pennsylvania paper and identified yourself a Pennsylvania resident. But where your company is based is up to you, and I'm happy to change that.

You say I'm biased in favor of CPF. I don't think so. I recognize CPF is a corporate lobbying group working in its members interests. But those interests are disclosed. Sometimes people lobbying in the name of "individual inventors" skip the fact that they have a direct personal and financial interest in the patent system. (just like CPF!) That's the point I'm trying to make. I do admit to a strong bias in favor of transparency.

You insinuate I am being paid by CPF, which is not true. My sole source of income is my employer, American Lawyer Media. I truly have no personal financial interest in the outcome of patent reform legislation or any other patent issue.

As I said, I'm happy to talk to you about what you think is inaccurate here, but I don't see it. In any case, you have my number now, and I look forward to talking to you at your convenience.