It's as simple as this: companies would rather sue over a patent or copyright claim than duke it out in the chancy world of open competition. Congress, in its eagerness to please its corporate masters, has helped facilitate the mess. The public, long disinterested in the complex and dry niceties of such things, is becoming aware that they have a stake in who owns what for how long. A very fine two-part article in the LA Times takes the matter on:
- For decades, finicky children have been eating peanut butter and jelly sandwiches with the crust removed. From a legal point of view, however, the lunchbox staple was invented on a patio in Fargo, N.D., in 1995.
- Incredible Uncrustables, a sandwich the two entrepreneurs mass-produced for Midwestern schools. It also began a long-running dispute over whether the U.S. Patent and Trademark Office went too far when it gave Geske and Kretchman the first patent on a mundane household sandwich.
"This doesn't mean your grandmother can't make you a peanut butter and jelly sandwich," said Ann Harlan, a lawyer for J.M. Smucker Co., which now owns Geske and Kretchman's company.
But it does mean that Smucker will try to prevent other companies from making them. For more than two years, Smucker has been arguing in court and the patent office that a crustless peanut butter and jelly sandwich made by Albie's Foods Inc. is violating its patent and must be taken off the market.
"They're misusing the patent system," said Albie's lawyer Kevin Heinl. "It's outrageous."
....Meanwhile, the system as a whole is breaking down. Patent applications are increasing in complexity and length, but the 3,500 examiners still are evaluated by how many they approve. The inevitable consequence, says one former examiner: "The path of least resistance is saying yes." Three-quarters of applications get approved.
Two former heads of the patent office have described the agency as sitting "on the edge of an abyss."
"Crisis is a strong word," the American Intellectual Property Law Assn. has noted in correspondence, "but we believe that it aptly describes the situation."
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