I am sorry that you feel I am being disingenuous. I have repeatedly explained the concept over and over again to Tom. If you read my comments you will see, for example:

“You continue to make the same fundamental mistake. Ideas cannot be patented, and an invention that is explained so that others could make and use it (the legal requirement) is not merely an idea.”

I would not characterize my explanation as disingenuous. I would also say that I believe it is Tom’s opinion that even if you describe how others can make and use the idea you do not have an invention until you have a prototype because much can go wrong in the building process. It is certainly true that much can go wrong, and a patent that covers an invention having a proven prototype is worth more. This does not, however, mean that ideas are patentable. Under Tom’s rationale detailed architectural drawings are just ideas until you build the building. That is not what the law holds to be true, and I ideologically oppose that view.

-Gene

I think it is a bit disingenuous of you to keep repeating the mantra “You can’t patent an idea” to Tom , who is obviously an engineer. While saying “You can’t patent an idea” has meaning to a patent attorney as a term of art, it’s meaningless to others. In case Tom is listenting, what this means is that you can’t obtain patent protecton for simply a broad brush idea. However, you can obtain a patent protection if you teach how to make and use that idea.

Example: My idea is a system for transporting a person or an object from one physical location to another, at very high speed, by disassembling the atoms that make up the person or object, transporting the disassembled atoms through space, and re-assembling those atoms at a destination location. I’ll call this invention a “tranporter”.

You can’t obtain a patent on the idea alone.

However, if you can teach [one of ordinary skill in the art] how to make and use that idea [without undue experimentation], then you may be able to obtain a patent [if you satisfy all statuory requirements]. To put it another way, if you can actually teach how to build a device that can accomplish the idea, then you
can obtain a patent for the device that accomplishes the idea [assuming all statutory requiremnts are met].

Whether you choose to accept it or not, an idea cannot be patented. That is the law, and it does no service to the many inventors who are duped by scams who claim you can patent an idea to perpetuate a myth that ideas can be patented.

If you choose to believe that a description of how to make and use an invention with the detail required by patent laws is nothing more than an idea, you are fine to believe that personally. At the end of the day this belief is erroneous and is not the law. Ideas cannot be patented.

-Gene

You said: “I never said you can patent “any idea”. However, you can patent some ideas. Clearly, if you are not required to generate a model, then ALL you can patent is some form of idea.”

You continue to make the same fundamental mistake. Ideas cannot be patented, and an invention that is explained so that others could make and use it (the legal requirement) is not merely an idea.

You said: “What economical utility do these patent vultures provide? If they didn’t exist, the actual innovators, the people who produce some actual product, would be able to profit and continue to innovate.”

The “patent vultures” as you call them are not preventing innovators at all. They prohibit copy-cats from using patent rights without paying for them.

You said: “Today it’s easy to get a patent…”

Everyone in the industry would disagree with you. With an allowance rate that is 42% it is anything but easy to get a patent. This is factually not a valid statement.

If you require a prototype then you would cripple research and development. You would cripple universities, federal laboratories and research and development companies. These companies to the hard work to discover and prove concepts on a fundamental basis. If they had to also produce a working prototype this basic research, which is the most valuable, would simply never happen because it would not be economical; it would be a complete waste of time. This would gut the Bayh-Dole legislation, which is universally considered to be the most successful piece of legislation over the last 50+ years.

-Gene

I certainly cannot argue that patent law is anything other than ridiculous. I personally think a lot of the problems are inadequate, incorrect and uneven administration of the laws. I would really like to try and actually have patent laws and rules enforced as they are written and intended.

-Gene

I never said you can patent “any idea”. However, you can patent some ideas. Clearly, if you are not required to generate a model, then ALL you can patent is some form of idea.

I assume you’re in the business, yes? And “idea” is some form of technical word to you, yes? So let me use another term, a “conceptual thing” (what most people would call “an idea”). *If you are not required to patent some sort of physical, tangible thing, then you must be patenting a conceptual thing.*

“More patents are better for innovation, not less. There is absolutely zero proof to suggest you get more innovation with fewer patents.”

You provide less proof of your claims than I do – a simple fiat statement, “You’re wrong,” without even an argument to go with it.

Clearly, protection of intellectual property does benefit innovation. This doesn’t mean that *more* protection of IP always results in more innovation.

“You say: “someone who only seeks to maximize their profit should rationally patent all ideas they can get their hands on and never develop them in the expectation that some poor victim will blunder into their trap and be forced to give up the results of years of work to someone who has contributed absolutely nothing to society or the economy.”

If that were true I would agree with you, but it is factually not true so we should not attempt to alter the system based on fiction.”

Sir, there is no reason to be rude to me. I’ve been extremely polite to you. I’m not ignorant on this matter, I have two patents to my name.

The fact is that when you patent a “process”, for example, you don’t actually bring someone in to your factory and show that process operating – you provide information to document *how someone would actually operate that process*. I understand that you have technical language where to you, this intangible, conceptual thing that has no physical component and lives only in our minds is not “an idea,” but this does not allow you to redefine *our* words for us.

If patent law really wanted to encourage “innovation”, it should require innovation out of the patent holders. As I wrote above, *in most technical fields the idea itself is a tiny part of the actual brilliance involved.* When Edison said, “Genius is 10% inspiration and 90% perspiration,” he was stating an absolute fact.

It is an undeniable fact that it’s an excellent strategy for a company to gather a portfolio of “unreified patents” – patents that it never intends to develop, that the company isn’t even competent to develop, but are simply there to catch other companies that are *actually performing economically useful services*.

What economical utility do these patent vultures provide? If they didn’t exist, the actual innovators, the people who produce some actual product, would be able to profit and continue to innovate.

More troubling are the lack of contemporary stories showing how individual can use patents to their own advantage. The fact is that making a patent claim is extremely expensive compared with other common legal matters. For example, we’ve successfully defended a trademark against Columbia Records for under $1000 (and we still have money on retainer with our attorneys) – this was easy as we’d simply kept documentation of what we’d done all the way. However, just getting your attorney to the point of standing up in patent court for you costs $100K, or so I’m lead to believe.

There are the terrible stories like Research In Motion and SCO. But what about the winners? Let’s look at, say, Robert Kearns. He won – sort of – but it took him thirty years and he had to quit being an engineer, lose his family and his health.

In the course of a moderately long life, I’ve had some small legal tussles (damage claims against others, a trademark dispute). The fact is that the law is perfectly healthy in these parts and I “won” – I had a legal victory and I didn’t spend that much money or time. Most legal cases are like this. Patent disputes are not like this. If you are an individual caught up in a patent dispute, you are suddenly looking at years of stress and hundreds of thousands of dollars.

The fact is that if a model were needed, it would cut greatly into the business of patent attorneys. Not only would there be far fewer patents, but actual patent disputes would be infinitely simplified if instead of the massive hypothetical clauses that patents always include, there were documentations of actual processes, machines, programs or other such demonstrations – a model. You could still include all the varieties that patents include (“Here’s the machine cooking pancakes. Here’s the machine cooking eggs. Here’s the machine cooking tomatoes”) but you’d actually have to demonstrate a model. (No, I don’t mean you come into the patent office with your robot cooker, but that you, for example, present photos, videos and schematics of a model in operation, and that you be prepared to demonstrate it to an examiner on request.)

The fact is that creating a model is
a) hard but
b) marginal in effort and capital investment compared to productionizing and monetizing a process, piece of software, machine or the like.

In the software industry, the truism is that it takes nine times as long to go from a “finished demo” that demonstrates all the functionality to a production program. And that’s in an environment where you can lift pieces right out of your demo and use them in production!

I actually think that’s optimistic, it’s closer to 20:1 – perhaps 100:1 if you are making physical objects.

Today it’s easy to get a patent and difficult to defend one – and that this whole process has little to do with your technical skill in the field of the patent. If patents were required to have models, rather than be “pure hypothetical conceptual things with no working models” – what non-patent attorneys would call “ideas” – the actual innovators would be better rewarded and less money would go to groups and individuals who are not creating anything of economic value.

Unfortunately, you are mistaken. Your mistake is fundamental. You cannot patent an idea, so any argument you have that starts with the believe that patent law allows for the patenting of ideas is simply wrong.

You say: “The more talent barrier to actually creating a patent there is, the better it is for innovation.”

More patents are better for innovation, not less. There is absolutely zero proof to suggest you get more innovation with fewer patents. Those who are lazy would prefer fewer patents so they can do what they want without infringing. Those who are motivated engineer around patents and advance innovation. If there were no or fewer patents there would be no need to innovate and engineer around, and advances in technology would stagnate.

You say: “someone who only seeks to maximize their profit should rationally patent all ideas they can get their hands on and never develop them in the expectation that some poor victim will blunder into their trap and be forced to give up the results of years of work to someone who has contributed absolutely nothing to society or the economy.”

If that were true I would agree with you, but it is factually not true so we should not attempt to alter the system based on fiction.

-Gene