Beware Those Claiming Software Patents Are Unnecessary

By Gene Quinn
January 13, 2010

Reports are widespread that large corporations have cut back on the number of patent applications they file, and I see no reason to believe these first hand accounts are incorrect. Nevertheless, fiscal year 2009 saw the second highest number of patent applications filed at the United States Patent and Trademark Office, down only some 11,000 applications from the record year in FY 2008. Meanwhile, tech sector giants have been crying and moaning about how the patent system has run amok and needs to be scaled back, and continually beg for patent reform that would gut the patent system and weaken patent rights. This grumbling is picked up by patent abolitionists who say “see, even Microsoft thinks there should be no patents,” which only adds to the hysteria. Against this backdrop the corporations bemoaning patents received record numbers of patents during 2009. Obviously they talk a good game but when push comes to shove they will get as many patents as they can, but want to make it hard for small businesses and individuals to get patents.  Quite curious if you ask me!

The popular press and many on the periphery of the industry suggest that the recession was to blame for the dip in overall number of patent applications filed during FY 2009, and acted like a 11,000 application decrease was monumental. Neither is true though, or at least an accurate representation of the full story. Certainly the recession has caused some companies to do things that make little or no sense, like cutting research and development budgets would really do anything other than lead to less innovation. The truth is that during recessions or rough economic times that may be quite isolated, large corporations do exactly the opposite of what they should do, but that is hardly news. Do you remember when “Wang” was synonymous with “computer”? Most do not know doubt, but what has always been true is that technology companies that reach the top are only passing through on their way down; to be replaced by smaller, leaner companies that pursue appropriate strategies and have solid and expandable innovations in demand.

When exactly was the last time the Microsoft or any tech giant actually supported an agenda, policy or change that benefited small businesses or start-ups? Never. The tech giants are concerned with hanging onto their market domination in the face of losing the ability to innovate. Large companies do not innovate, there are simply too many layers between inventor and decision-maker, and a lot of complacency that leads to the belief that whatever they pursue will be a winner. The technology sector is fickle; a strange “what have you done for me lately” industry that typically has highly educated consumers who not only like gadgets but covet functionality. In this sector if you build a better mousetrap the masses will follow, assuming of course you have the business acumen to reach the marketplace in a relevant time frame and at an attractive price point. This being true the technology sector has been and always will be ripe for take-over by the have-nots; the small players who innovate. The key differentiator between those start-ups that can achieve massive success and those who fall prey to the large mega-giants is a progressive and sophisticated intellectual property strategy, and the 800 pound gorilla in the intellectual property rights room is the patent.

Make no mistake about it, patents provide a competitive advantage. The patent right grants to the owner the right to “exclude others,” which means that others cannot do what your patent covers. The increasing emergency of patent litigators that will accept cases on a contingency basis is leveling the playing field and affording independent inventors, small businesses and start-ups the ability to take on the big players and win. When you have a fight on your hand you don’t hire a patent attorney that plays nice, you hire a patent litigator that isn’t afraid, won’t back down and will fight to win. Everyone loves to hate lawyers, but when you have a dispute against a big company everyone wants the lawyer who doesn’t get paid unless they win. The emergence of contingency patent litigation is what has giant tech corporations spending many millions lobbying Congress. They have their patents and they don’t want to have to respect the patent rights of others. This is extremely telling given so many tech giants received many more patents in 2009 than they did in 2008. There is obviously a disconnect somewhere, and it seems pretty obvious to me that this “do as we say, not as we do” approach to patents is self-serving. Anyone who stands down from obtaining patents based on the belief that Microsoft and other tech giants are leading some altruistic fight to make a better, fairer patent system is in for the shock of their life. Trusting is one thing, but naive to the point of ruining your business and losing everything is quite another.

According to a press release issued by IFI Patent Intelligence, US companies received approximately 7% more utility patents in 2009 than in 2008. Here is a list of some notable technology companies and the percent increase in the number of patents they received in 2009 versus 2008:

  • IBM up 17%
  • Microsoft up 43%
  • Boeing up 26%
  • Broadcom up 11%
  • Cisco up 30%
  • General Electric up 7%
  • GM Global up 68%
  • Honeywell up nearly 6%
  • Sun up 10%
  • Xerox up 18%

What is clear is that these and other tech giants are stocking up on patents at a time they are moaning about how awful the US patent system is and convincing many unsuspecting patent abolitionists that they believe it should be harder to get patents and maybe patents shouldn’t exist at all in some areas.  What they want, plain and simple, is it to be harder for YOU to get patents, not harder for them to get patents.  They would be happy to have the patent system gutted because they already enjoy market dominance, and they don’t want to have to innovate or compete against small businesses and individuals who innovate more and create inventions that push the envelope.  They urge positions that are friendly to themselves, not positions that would lead to robust competition and paradigm shifting innovation evolution.

It is clear that the tech giants have sold everyone a bill of goods, and those who bought in should feel used.  The truth is that if you want to raise money you need to have patents and that is an industry truth that only the patent abolitionists ignore.  The abolitionists claim that copyrights provide the same protection, which is laughably wrong although they say it with such vigor.  The reason the popular press has picked up so much on patents and the dysfunction of the Patent Office is because small businesses are the ones who grow jobs in the US and when they cannot get patents they cannot move forward.  Investors either cannot be found or move on when patents cannot be obtained.

As Dean Kamen, perhaps the most famous and decorated living inventor says over and over again in slightly different contexts is that the first thing investors ask is whether you have a patent.  See, for example, David Kappos — Yes He Can? So while brilliant person A claims they can raise millions of dollars without patents and relying only on copyrights, and while brilliant person B claims patents are unnecessary or even evil, this is not the industry experience of, well, everyone who works with small businesses and independent inventors.  Those who choose to believe that patents are not necessary and not a good idea are being conned.  For what purpose I don’t know, but what I can tell you is if you listen to those, like the tech giants who say patents should be weaker but get as many as they can, and those who claim copyrights suffice and patents are not necessary, you may feel good but will ultimately come to the realization that you listened to the wrong people.

The other night on Bill O’Reilly’s show he correct Glen Beck who said “I could care less,” referring to the fact that he doesn’t care about his critics.  O’Reilly said it should be “I couldn’t care less,” which is of course correct, at least with respect to the point Beck was trying to make.  I bring this up to make a point.  I can say unequivocally that I COULD CARE LESS about what my critics say, the trouble is I don’t care less.  What they say doesn’t matter to me even a little, but I deal too often with folks who have been scammed by invention promotion companies and those who thought they were listening to good advice and only later found out that what they were told were a pack of lies.  Patent abolitionists use all kinds of tricks and little or no logic, and they are everywhere on line and no doubt convincing many they are correct.  So while I couldn’t care less what my critics think, I do really care about getting good information out that can be used by those who really want to succeed with their innovations. Of course, I realize all too well the wisdom of the statement about the horse and the water, you know the one I’m sure.

The truth, simply put, is this… if you have an invention that can be protected via patent then you absolutely should obtain a patent.  Patent rights are exceptionally strong, investors love patents and with the growth of contingency patent litigation if others are infringing you recourse can be had.  A patent is not the end all be all answer, and the Supreme Court has done their level best to make patents less valuable in recent years, but without a patent others can and will simply take your invention and make it, use it and sell it without ever paying you a dime.  Without a patent you have no asset to license, and without a patent you are a target for being sued by those who do have patents.  If you have a patent you have protection, depending on the scope and integrity of the claims, and those who might otherwise sue you think twice because if they do you will sue them, which typically doesn’t fit into their broader business plans for domination.

For all these reasons more and more open source companies obtain patents and participate in patent licensing pools where patents are shared among contributors.  So the next time someone tells you that open source software does not rely on patents you can simply laugh and realize the person doing the talking doesn’t know what they are talking about.  Google it for yourself.  The patent abolitionists and free software folks hate that Red Hat and others have large and growing patent portfolios (see here, here, here, here and here, for example) but they do have them, and why would Red Hat’s supported open source patent pool purchase patents that they claim do not relate to Linux and which were not being infringed? In all likelihood the growing open-source patent pool portfolio has kept Microsoft at bay and prevented them from taking action to back up their claim that Linux violates MS patents.  Why do you think TomTom joined the Open Invention Network after being sued by Microsoft?  Why do you suppose abolitionists and free software advocates refuse to acknowledge the justifiable business rationale for obtaining patents and seemingly ignore the existence of patents on open source technologies and patent owned by open source companies?  Whether for defensive or offensive purposes, if the major players on the proprietary side of the aisle and the major players on the open source side of the aisle have patents, why shouldn’t small businesses?

If patents are good for Microsoft and the tech giants, patents are right for Red Hat and the open source community and patents are demanded by investors, as Dean Kamen explains, when small businesses seek funds, why would they be bad for independent inventors and small businesses?  When you start out in business you don’t model yourself after those who fail, but rather after those who succeed, and the one thing successful businesses with proprietary and open source business models agree on is that patents are important enough to obtain.  Simply stated, those who refuse to acknowledge the power and protection afforded by patents ignore reality and must be assumed to have an agenda.  They certainly don’t have your best interests at heart, and that is why I could care less, but don’t!

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 99 Comments comments.

  1. Dale B. Halling January 13, 2010 5:48 pm

    Excellent points Gene. Unfortunately, the tech giants are not just hurting independent inventors and technology start-ups, they are destroying the American economy. The appalling change in the position of the US economically in ten short years is not just due to financial mismanagement. Even before the financial meltdown, growth was anemic this decade. If we want to return to the incredible innovation (invention) of the 90s we need to support the foundation on which technology start-up companies built intellectual capital, financial capital, and human capital. All three of the pillars have been under attack since 2000. Our patent laws have been weakened reducing the value of intellectual capital. Sarbanes Oxley has made it impossible to go public reducing financial capital for start-ups and the FASB rules on stock options have made it harder to attract human capital to start-ups. The Decline and Fall of the American Entrepreneur: How Little Known Laws and Regulations are Killing Innovation http://www.amazon.com/Decline-Fall-American-Entrepreneur-Regulations/dp/1439261369/ref=sr_1_1?ie=UTF8&s=books&qid=1262124667&sr=8-1, explains these problems in more detail.

  2. Dale B. Halling January 13, 2010 8:44 pm

    Gene,

    Here is an interesting case study on the value of patents. Xerox had essentially 100% of the plain paper copier market in 1971 when the FTC sued them for anti-trust violations. (Note that Xerox invented the plain paper market) In 1975 Xerox agreed to settle it case with the FTC by essentially giving its patent portfolio away for free. By 1979, Xerox had 14% of the plain paper copier market. So much for first mover advantage. For more information see http://hallingblog.com/2009/10/21/jobs-the-economy-and-patents/.

  3. OldTimer January 14, 2010 3:41 am

    In all fairness, Gene, most of the patents issued to these companies in 2009 were probably filed between 2002 and 2006. You are witnessing the tail of the boom, not a resurgence of any sort. I have not spoken to a single company that is increasing filings in 2010. Across the board, filings are flat at best, and many are reducing filings by 10-30%.

    I recently spoke with a tech VC who said they have reduced the emphasis on patents in their investment initiatives in the wake of recent changes in case law. A close paraphrase: “Nobody cares about patents anymore.”

    Everybody I know in private practice is slow and getting slower. In the end the Chinese, Japanese, and Koreans will eat our lunch.

  4. The Mad Hatter January 14, 2010 3:49 am

    Gene,

    Do you know of any peer reviewed studies which show that the patent system as a whole has any value to society? There is a basic assumption that ‘more IP’ is better, whether it is copyright, patent, or trademark.

    The problem is that we have at present no proof that this is true. Or to be more correct, we have no information which would allow us to determine what is the correct amount of ‘copyright and patent’ protection gives the optimum benefits to society, including both the creator, the manufacturer/distributor, and the end user. Without that sort of information, any proposal that can be made is meaningless.

    I feel that Trademark technically should not be considered ‘Intellectual Property’ as it does not protect creative works, instead it is a means of identification that a good is made by a certain firm. This serves a totally different purpose, for example we are suffering from head colds (the curse of living in Canada) and when I went to the pharmacy, I purchased Kleenex brand tissues. I have a level of trust in product that has the Kleenex brand name, warranted or not (which is the same reason my digital camera is a Canon).

    Wayne

  5. Blind Dogma January 14, 2010 5:02 am

    “The problem is that we have at present no proof that this is true.”

    Mad Hatter – the standard reply to such a comment is that we do indeed have proof that this is true. The proof is in comparing countries that have strong patent systems with those that do not, and comparing such levels of patent systems with indicators of the results of promotion, such as start-ups, funding, and innovation (a bit circular in that this includes patent filings – but logically correct albeit irritating to the anti-patent folk).

    This is not a new position – Gene has stated this on numerous threads. The fact that you yet again put forth the argument means that you are either not quite understanding the response, not believing that response, not reading that response, or are just plain thirsty.

    Would you like to buy a nice glass of Kool-aid?

  6. step back January 14, 2010 6:14 am

    “Those who choose to believe that patents are not necessary and not a good idea are being conned. For what purpose I don’t know.”

    Gene:

    Of course you know.

    The purpose is to devalue the self worth of every inventor out there.

    Remember that scene in the movie, “Conan the Barbarian” where James Earl Jones beseeches of Schwarzenegger, “Come to me my child, for without me you are nothing”?
    Reminder image: http://www.thecimmerian.com/wp-content/uploads//2009/02/thulsa-doom.bmp

    Well that is what the tech giants would like for every inventor to be convinced of, namely, that the inventor has no choice but to lower his head and come begging to the high priests of technology for succor. For without them he or she is nothing.

    In the movie, Conan almost falls for that hypnotic sucker line.
    But then something snaps in him. He lifts his sword …
    and swiftly cuts off the head of the snake king. Game over.

    Here is another reminder image:
    http://thecimmerian.com/wp-content/uploads/2009/02/conan_the_barbarian_11.jpg

    In fact one of the major themes of the movie “Conan the Barbarian” is that the whole Doom Cult/ Snake Kingdom is a facade. They look powerful and foreboding. But a single man (Conan) can bring them down if he remains resolute and does not let himself become seduced by their snake charmer calls.

    It’s sort of the same in the world of innovation. Conan is nothing without his sword. An inventor is nothing without a quiver full of patents. The purpose of the tech giants’ seduction song is to disarm all inventors.

    Here is a link to to the Conan story and more images if you are interested:
    http://www.thecimmerian.com/?p=3371

    Wiki link:
    http://en.wikipedia.org/wiki/Conan_the_Barbarian_%28film%29

  7. John January 14, 2010 8:27 am

    @Oldtimer – Agreed. The US has gone from being perhaps overly pro-patent to anti-patent. Not surprised companies have cut back. Uncertainties regarding what can be patented (Bilski), what should be patented (KSR) and what you can do with a patent (Ebay & Medimmune) have popped the patent bubble. Today, it is more difficult to obtain a patent and to commercialize a patent compared to just a few years ago. At the same time, India and China have been increasing their patent rights. The US lead in innovation might be the next bubble to pop.

    And I’ve heard many VCs dismiss patents as well, despite the fact they nearly always ask about “barriers” in pitches and many have gotten burned by investing in me-too startups the past decade that have gone no where or innovative startups that get squashed by the big guys.

    In fact, I’ve heard many VC complain patents are a “tax on innovation”. Patents can always be improved upon and designed around promoting further innovation. What patents do prevent is commercialization of what’s patented.

    There are some reforms that could alleviate anti-patent rhetoric including:

    (a) penalize sham suits (e.g. form letters listing patents, providing unsubstantiated/unclear allegation and asking for money) – allow recepient to ignore without penalty until allegation clearly defined and articulated, while at the same time not allowing a DJ action unless or until suit threatened or patentee’s actions are abusive.

    (b) damage reform – tie damages to the value of the innovation to the product. Also, develop additional tools to influence innocent and willful infringers. We have willful infringement, permanent injunctions and damages as penalties. One VC recently suggested an Independent Invention Defense. Not sure about that, but maybe cap damages or exclude permanent injunction if defendent can show by clear and convincing evidence conceived of invention prior to any publication of the others invention. Patentee can still assert against others and gets compensated by innocent infringer, but its treated differently. I’d consider this a compromise.

    (c) reduce the PTO burden to improve quality (only examine application when someone (applicant or any third party) requests the application be put in the examination pipeline, otherwise never examined.

    I think there are incremental changes that could be implemented to improve the patent system without destroying it.

  8. Mike January 14, 2010 8:53 am

    I know of at least one company that was pro-patent in it’s early days and a leader in the industry. Anti-patent for a long period believing that the field was mature. During this period the company lost market share and was hindered in negotiations by the lack of patents, even though the company continued to innovate and conduct R&D. Within the last 2 years the company has increased patent filings 7 to 10 fold, but has determined that hiring several in house patent prosecution attorneys and agents is much cheaper than paying multiple law firms to draft and prosecute patents.

    MORAL: If a company innovates and does not have patents to document that innovation, they do not get credit for those innovations. They do not have any chips to bring to the table and pay more to join the game. In the end the cost of obtaining patents is minimal compared to the financial lost of not having patents. Also note that patents are far more influential than trade publications (which have remained steady for this company).

    Additionally, there is no “mature field” unless the field is no longer marketable. If you make a product, you will continue to improve the product, your competitors will copy those improvements and you will lose any R&D investment unless you have the protection offered by a patent. Innovation has always been a moving front, building off of the innovations of the past and developing better techniques for the future. The wheel led to the bicycle, led to the car, led to the assembly line, lead to PROZAC. You find problems with the way things are done and you innovate to improve. There is no difference in the innovative process between software, hardware, tools, manufacturing, and medicines. There may be differences how research is conducted, the cost of research, and how the patents are used in the end, but there is no difference in the overall innovation, see a problem/inefficiency, solve the problem, gain an advantage. Without protection your competitors will copy that advantage.

  9. Dale B. Halling January 14, 2010 10:20 am

    Another little bit of evidence for the anti-patent crowd, in the 1970s antitrust suits brought by the government caused US companies to give away the technology related to over 50,000 patents. This does not include the chilling effect these antitrust lawsuits had on patents. A MITI study showed that Japanese companies took advantage of this wholesale give away of US technology to catch up with their American competitors. The recovery of the 1980s did not take off until the validity of patents was strengthened and the absurd 9 no-nos of the FTC were eliminated.

    Of course no amount of proof will be enough for the anti-patent crowd. If you ignore Occam’s razor its possible to support your irrational position forever. The anti-patent crowd has devolved into the theologians of the middle ages arguing over the number of angels can dance on a pinhead. For more on this irrational trend see http://hallingblog.com/2010/01/13/a-modest-proposal-for-academic-economists/

  10. Gene Quinn January 14, 2010 10:25 am

    Dale-

    You say: “Of course no amount of proof will be enough for the anti-patent crowd.”

    I tend to agree with you (no surprise) but I find it interesting that the anti-patent crowd is absent from commenting on this article. Perhaps even they in their religious zeal can’t even come up with anything they could possibly refute, which is quite telling if you ask me.

    Cheers.

    -Gene

  11. Just visiting January 14, 2010 10:29 am

    “Do you know of any peer reviewed studies which show that the patent system as a whole has any value to society? There is a basic assumption that ‘more IP’ is better, whether it is copyright, patent, or trademark.”

    Do you know of any peer reviewed studies which show that laws against murder have any value to society?

    My answer to both those questions is that just about every civilized country in the world has laws protecting IP and laws against murder. Moreover, in many countries, these laws have been on the books for centuries. Some things are just self-evident.

  12. Just visiting January 14, 2010 10:54 am

    “In the end the cost of obtaining patents is minimal compared to the financial lost of not having patents.”

    True that.

    This, however, is the cause of much strife. Imagine way back when the Homestead Act of 1862 was enacted. Someone could gain 160 acres of land almost for the asking (well, doing a little more than just asking). Flash-forward a few decades or even a hundred years and what was gained for a pittance is worth much, much more. For those that did not take advantage of it (or who were not around to take advantage), it seems unfair that those who got there first gained so much for such a little upfront investment.

    However, those who got there first had to improve the land. They had to clear the trees and remove the stones from the fields. Although someone may have done the same eventually, the need was to have done quicker rather than later, and the Homestead Act provided that impetus.

    Encouraging innovation via patent law is more than just encouraging the existence of an invention period. We all recognize that certain inventions will likely come into being regardless of whether a patent law exists. However, patent law also encourages the quicker discovery of these inventions. Competition in the form of a “all or nothing” prize brings discoveries to light much quicker. Also, patent law provides impetus for inventions that will unlikely come into being – e.g., those that have a high-cost of initial innovation but low-cost of duplication.

    Finally, I think Congress has properly resisted (most) attempts to avoid giving preference for some forms of innovation over others. 20 years is plenty of time for most inventers to be incentivized to bring their inventions to the public.

  13. EG January 14, 2010 11:45 am

    “Another little bit of evidence for the anti-patent crowd, in the 1970s antitrust suits brought by the government caused US companies to give away the technology related to over 50,000 patents. ”

    Dale,

    My career in IP law began in that awful era (I’ll soon turn 58). I truly hope we aren’t returning to that time, because if we do, American enterprise, innovation (and jobs) will suffer for it.

  14. Adam January 14, 2010 12:25 pm

    “tech sector giants have been crying and moaning about how the patent system has run amok and needs to be scaled back, and continually beg for patent reform that would gut the patent system and weaken patent rights.”

    Who are you talking about here? Microsoft has made it very clear they want strong patent protection of software. As you point out, the number of software patents they continue to acquire is a clear enough message about their desires. But they also make it explicit in the amicus brief in the Bilski case this fall. http://www.patentlyo.com/am-brief.pdf Why do you claim they want to weaken software patents?

    “When exactly was the last time the Microsoft or any tech giant actually supported an agenda, policy or change that benefited small businesses or start-ups?”

    If this is true, why do you suggest that small businesses follow Microsoft’s lead and acquire as many patents as possible? It seems like you’re saying their patent policy benefits small businesses.

    “The truth is that if you want to raise money you need to have patents”

    I believe a well-known entrepreneur recently commented on your site and squarely refuted this claim with his personal experience. I found it strange that you never responded to the list of prestigious VCs he got money from.

  15. Gene Quinn January 14, 2010 12:36 pm

    Adam says: “Microsoft has made it very clear they want strong patent protection of software.”

    Microsoft’s filing on Bilski at the CAFC was anything but supportive of strong patents, and they and the other tech giants have for years supported patent reform that would substantially weaken the strength of and rights attached to patents, all in an attempt to make them weaker and make it harder for start-up entrepreneurs and innovators to compete with established tech giants.

    Adam says: “why do you suggest that small businesses follow Microsoft’s lead and acquire as many patents as possible?”

    It is true that Microsoft has never supported an agenda that is small business friendly. There is, however, nothing at all inconsistent with me saying that small businesses should follow Microsoft’s lead. Do as Microsoft does, not as they say others should do. While they want a weak patent system to consolidate their market dominance they get as many patents as they can, so obviously they see the value in patents. So if patents are good for Microsoft why don’t they make good business sense for others?

    Adam says: “I believe a well-known entrepreneur recently commented on your site and squarely refuted this claim with his personal experience. I found it strange that you never responded to the list of prestigious VCs he got money from.”

    VCs that invest in companies without patents are definitely not prestigious. They are stupid and engage in speculation. They order their business affairs based on irrational methods. They are either naive, stupid or they philosophically are forwarding an agenda, but they are certainly not operating in a business appropriate way.

    What I find interesting is that you and others are putting stock in what Ian said and totally disregarding the completely contrary viewpoint of the most prominent and successful inventor of our time. I know anti-patent folks want to parade the view of important people out as proof, rather than engage in debate, justify their own positions and demonstrate a logical thought process. So that being the ground you all wish to fight on, I thought I would accommodate you. Now the burden is for you to explain why Dean Kamen is wrong. We all know he is brilliant, we all know he has formed many companies and he was recently on 60 minutes and hailed by pretty much everyone as the most prominent and successful living inventor. So why don’t you and others prove he is wrong.

    I am getting sick and tired of being told I don’t provide proof for my positions. I prove everything, explain facts and give analysis. The abolitionists are the ones without proof, and anyone who is intellectually honest knows that!

    -Gene

  16. Gene Quinn January 14, 2010 12:47 pm

    Mad Hatter-

    You say: “Do you know of any peer reviewed studies which show that the patent system as a whole has any value to society? There is a basic assumption that ‘more IP’ is better, whether it is copyright, patent, or trademark. The problem is that we have at present no proof that this is true.”

    There is plenty of proof, but you choose to ignore it. I say time after time look at the world we live in. Look at where the patent rights are strong, where they are weak and where they do not exist. If you do that you will see that those places that have the strongest patent rights have the most vibrant economies, the most investment and the highest standard of living. This is not rocket science, and I don’t need to resort to “peer reviewed” studies or reports. I just have to look at the facts.

    Why is it so difficult for the abolitionists to accept what everyone knows to be true? Reliance on “peer reviewed” studies is nothing more than a joke. For every study that says one thing there is another peer review study that says the complete opposite. We also know that the “peer review” studies on global warming were nothing more than a hoax. They suppressed information and forwarded a political agenda rather than engage in science and debate. The reality is, whether you want to accept it or not, studies always have bias. What does not have bias are facts. Facts are what they are, and the facts demonstrate that where there are strong IP rights many corporations engage in much activity that creates jobs and provides a friendly climate for investment, which continues the cycle.

    For additional proof you need to look no further than stem cell research. When the US federal government under President Bush (43) decided not to fund stem cell research in a real way what happened? Where did research and innovation go? It left the US largely and went to other countries with more friendly legal climates. This is repeated over and over again. Business goes to the places where there is the most friendly legal climate, and a strong patent system is a big piece of that. Why do you choose to ignore this verifiable, factual information and demand biased peer review research? Please explain why facts and reality are not to your liking.

    I say over and over again, and I make the offer again. We need a controlled test, so why not have the US continue on a strong IP path and get a socialist or quasi socialist and developed nation to abolish patents. I will do whatever possible to assist any country that wants to abolish their patent system so we can once and for all figure out the truth in a controlled experiment that you abolitionists can be proud of. I offer my legal advice for free to any country that wants to know what I think is necessary. They can then do the exact opposite and we sit back and wait a few years and see what happens.

    -Gene

  17. Gene Quinn January 14, 2010 12:50 pm

    Old Timer-

    I don’t doubt what you are saying, and realize these applications were filed much earlier. Nevertheless, it is impossible to believe that nobody cares about patents any more when all these companies are paying the publication and issue fee to get more patents. This doesn’t even take into account the fees paid to patent attorneys to negotiate with the patent examiners.

    If you ask me, there is an awful lot of posturing going on and where companies are putting their money seems to directly contradict the position they take publicly that nobody cares about patents. The wonderful think about a patent system is it is voluntary. If they don’t care then they could just unilaterally stand down, but they don’t. Makes me wonder.

    -Gene

  18. John January 14, 2010 2:01 pm

    @ Gene Quinn January 14th, 2010 12:36 pm – Re VC firms, I was surprised as well, but there are a few VC that don’t care much about patents and have a decent track record, at least in the Internet space where gaining traction/market share is the key. For example, Union Square Ventures was a very early investor in Twitter, Esty, and more recently Foursquare. I think they’ve got a good track record and don’t care much for patents (read their recent blog and comments). Of course, each of those startups could be vulnerable to Facebook, Amazon or Google and a few patents in the back pocket would be helpful if that happens. But if they see a great idea and a great time, they fund it early to give it a head start on the competition. And, unlike some VC firms, they don’t tend to fund me too startups.

    However, I think many other VCs are interested in patent protection, particularly in pharma, biotech and other similar types of innovations.

  19. Adam January 14, 2010 3:20 pm

    Gene,

    You say, “Microsoft’s filing on Bilski at the CAFC was anything but supportive of strong patents”

    I’ve only read the brief once, but it clearly makes the same argument I’ve seen many times here: software is no different from physically rewiring a computer, and so creates unique patent-eligible machines. To quote, “Computer-implemented process claims, in general, will meet the standard historically employed by this Court, which should be retained and reaffirmed.” In what way do you find their brief to be unsupportive of strong software patents?

    These two quotes seem inconsistent to me:

    “Large companies do not innovate” vs. “When you start out in business you don’t model yourself after those who fail, but rather after those who succeed”

    This only makes sense if you don’t think small companies should innovate. On the other hand, you could encourage small software companies to model themselves after Microsoft’s early years. There’s not much of an argument for patents in that model, though.

    “Now the burden is for you to explain why Dean Kamen is wrong.”

    In the article you linked to, Kamen says banks and investors ask inventors about patents. I don’t know if that’s always true, but it’s believable. If that’s his experience, then how can you refute it? I think we can all agree that lots of investors have asked Dean Kamen about his patents.

    However, we have an example of someone who has done fine without patents, Ian Clarke. We also have a couple of people on this page saying that some investors are not valuing patents very much when it comes to software. This can also coexist happily with Kamen’s experience. First, because he isn’t in software. And second, because he has had patents, so his experience would be different from those who don’t.

    What cannot coexist with Ian Clarke’s experience is the assertion that patents are absolutely necessary to get funding from large, savvy investors. This is what you claim, Gene, and it’s verifiably false.

  20. Gene Quinn January 14, 2010 4:46 pm

    Adam-

    You really think those two statements are inconsistent? Really?

    You really think I am saying that small businesses should not innovate? Really?

    Allow me to be as clear as I possibly can in hopes of getting you to understand. Small business SHOULD innovate and they SHOULD learn from big companies that patents are essential. If you combine actual innovation with a strong patent portfolio small businesses will succeed and become the big businesses of tomorrow.

    As for Ian Clarke. You can choose to believe him if you want. I choose to believe what I know to be true. Investors demand patents. The only way to get funding from savvy investors is to produce patents. Savvy investors never invest in companies without a competitive advantage and they never invest in companies without patents. If Ian did get funding they are not savvy investors, period! What I say is verifiably true, what you say is verifiably false. Over and over and over again small businesses and independent inventors are turned down because they do not have patents. That is the reality of the business world, and everyone in the industry knows it to be true. Why Ian Clarke is promoting something provably false based on the collective experience of independent inventors, small businesses, patent attorneys and sophisticated inventors like Dean Kamen is a mystery. Following bad advice and pretending that patents are not necessary is naive, and promoting such nonsense gives independent inventors and entrepreneurs the wrong idea. If they follow this advice they will surely fail.

    -Gene

  21. Gene Quinn January 14, 2010 5:00 pm

    It sounds to me like what John is explaining is that there are VCs out there who are willing to provide early round funding without patents. Of course, that is the only way it can be done. Given that patents cost money and to get good patent applications filed is not cheap, most start-ups obtain at least some speculative money based on innovative technology and a business plan that includes using early funds to file for and ultimately obtain patents.

    What happens with alarming frequency today given the extraordinary delays at the Patent Office is that these early investors vanish or simply sit and wait, refusing to provide additional funds when patents are delayed or do not issue. This, which everyone in the industry knows happens and has been reported on even in the popular press, proves the rule. It is not an exception.

    Here is an article the talks about Facebook having few patents, and Twitter apparently having none. Of course, it is impossible to tell really because these types of patents are only granted in the US for the most part and if you waive foreign filing rights you can keep applications secret until the patent issues. The article concludes that it is not plausible to believe that Twitter has no patent applications given the amount of money they have raised, and I agree. See:

    http://industry.bnet.com/technology/10004559/facebook-and-twitter-light-on-patent-filings/

    But lets assume that Twitter has no patent applications and they have been able to dupe investors into providing copious amounts of money. This would demonstrate an extremely naive view of the world, of technology and no understanding of the patent system or patent litigation. Twitter is already being sued from a variety of directions on patent infringement, and without their own patent portfolio they are going to be huge targets. Being first to market is helpful, but only if you can last. Being first to market and getting sued into oblivion and not having the ability to stop competition is nothing more than a Napster strategy. It is almost comical to think that Napster at one point cornered the market, or was about to, on music downloads. Now they are a footnote in history. The same will be true for Twitter and any other company that ignores patents. Investors who invest in such companies are not sophisticated, they are naive. Perhaps they have too much money for their own good, or are willing to place a bet down on the technology roulette wheel and hope it pays off before they lose everything.

    More likely, Ian is not telling the whole story, or his investors are simply not savvy. There are plenty of strategies that can be employed to make it look like there are no patents in play, but it is simply not plausible to believe millions of dollars can be raised without a patent strategy.

    -Gene

  22. A. Rebentisch January 14, 2010 7:08 pm

    You are an agent provocateur, Gene.

    Your argument is that pumping up the patent bubble would continue forever. First the examination process at the USPTO breaks, outsourcing is an option, but it is time to get into creative solutions.

  23. John January 14, 2010 7:52 pm

    @Gene – I agree with you patents are valuable. With respect to twitter, I think its last valuation was over a billion and union square got in early and others hopped on between the first funding and the last funding. I think facebook offered 1 billion to buy them so that itself would have been an amazing patentless exit if they had accepted. Facebook’s valuation is even higher and is a likely IPO candidate.

    To win in the Internet world, I think you generally need at least two of three things: (1) huge market share; (2) a pile of money; (3) exclusive rights. Knocking down (1) can lead to (2), which is what twitter and facebook achieved. They both now have big piles of funding. How did they do it? Skill, luck, timing, team, execution and other factors. It’s tough to do outside the Internet world where market share can be obtained by cost cutting and sales, but not that that unusually in the freemium crowded Internet where going viral is the goal and can be achieved without patents or funding.

  24. Gene Quinn January 14, 2010 8:47 pm

    A. Rebentisch-

    I reply only to say that your comment makes no sense. What is it that you are trying to say? I am happy to respond, but it seems that your thoughts are quite jumbled and not well articulated.

    -Gene

  25. Gene Quinn January 14, 2010 8:51 pm

    John-

    Point taken. We will see what plays out. If the Internet boom of the 1990s taught us anything is that valuation in the Internet space is frequently irrational, and a lot of people lose a lot of money. I can’t help but notice the ponzi scheme nature of many Internet companies. No real prospects of making money, or much money, and irrational belief that traffic will ultimately lead to a business plan that makes money. If you get in early and are willing to let it all ride then you might do OK as an investor, but with that mentality it seems like going to Vegas is an equal and far more entertaining proposition.

    -Gene

  26. Mike January 15, 2010 8:54 am

    It is clear to me, even with all of my pro-patent posts, that not all business models require patents. Posting small texts to a web site is no different than a blog with a 40 word limit. There may be no patentable subject matter available for Twitter to patent.

    The Twitter business model may also bank on name. The value in Twitter is the name of the corporation and people’s use of the site. Protection for twitter.com, TWITTER(TM), and various other intellectual properties would have much more value to a business like Twitter. So although Twitter may make some innovations, the main focus of their business is not innovation.

    GOOGLE(TM) has the benefit of both innovating search methods and a valuable name. There both forms of intellectual property are important. Google has innovated search strategies and many other computer related technologies. All worthy of patents if they were novel.

    I have thought long about a good example for the value of software patents and why novel uses of mathematical functions are valuable and innovative. The best example would be the CAT scan. A simple X-ray signal (that already existed) is mathmatically transformed to determine the X-ray path and develop a high resolution 3D image. In this example a simple signal is transformed by a mathematical formula and it is novel and deserving of a patent.
    Patents were:
    http://v3.espacenet.com/textdoc?DB=EPODOC&IDX=US3971948
    and continue to be issued:
    http://v3.espacenet.com/textdoc?DB=EPODOC&IDX=US7647088
    for novel subject matter.

    The USPTO is already rejecting similar technologies using Bilski. Is this the proper application of Bilski?

    Those claiming that software is simply a mathematic transformation without function are not giving themselves credit. If this were the case, then there has been no innovative software since the laws of science were developed. Because everything developed after Newton, Keppler, Joule, and Boyle is just manipulation of the original laws of science. The laws aren’t patentable subject matter, so we should just scrap the whole system. Software is valueless to society because they don’t generate anything, they don’t do anything, they don’t solve problems, they just manipulate mathematics. If I wanted to I could sit down with an abacus and do everything that a computer program does. There is no value added and no better way to do it.

    All molecules are known, therefore there is no new chemistry. Silica has been used in computer chips, there is no new hardware. The human genome has been sequenced, there is no new biochemistry. S–T, all words are known, there are no new books or patents either. I have no purpose and neither do you. I quit, I’m going home to play a video game that isn’t novel.

  27. pop January 15, 2010 7:23 pm

    First off, let me say that the reason I haven’t been around in a while is because I have been busy, not because I have been hiding. Quite frankly, reading all the blog entries with comments and coming up with well crafted comments is basically a second job sometimes.

    I feel the need to bring up an important point. Ignore for a second any dependencies about weather or not patents stimulate innovation and economic progression. It is a well known fact that monopolies hurt the economy in a capitalist system, which is why we have anti-competitive laws. Whatever you can say about the detrimental effect on the companies, such as Xerox, AT&T, and Microsoft, it certainly wasn’t a bad thing for the economy or the average consumer.

    Big companies are trying to do the same thing now in a more stealthy way, which I believe is the thrust of Gene’s argument. They want to gain a dominate market share and then close off the mechanism that helped them get there to other people who might usurp them. The strategy is the same, to obtain and keep a monopoly.

    Most people don’t like my MS rants, but think about it for a second; do they make a single decent product outside of office? Not really. If they had to come onto the scene today with their product line up most people would tell them to hit the bricks. They rely on the fact that they already have a nearly insurmountable dominance in market share, which in the tech business means a lot.

    Gene said that people will follow the latest and greatest mousetrap, but that statement should be taken with a grain of salt. The fact that IE6 is still being used at all, arguably the worst browser available, is because businesses don’t like changing infrastructure they rely on.

    The devil you know is better than the devil you don’t. If your whole IT chain is based on a single company and you have years of data and transactions and dollars and man hours invested into it, your not likely to be drawn away over a few new bells and whistles unless it can promise you serious savings. Outside new computer sales and video games, most of the money changing hands in the IT world is not consumer consumption based.

    I agree with the premise of this article. The big boys in the playground will do whatever it takes to trap customers into using their products and it includes much more than just throwing patents around.

  28. EL January 17, 2010 5:24 pm

    “Those claiming that software is simply a mathematic transformation without function are not giving themselves credit. If this were the case, then there has been no innovative software since the laws of science were developed. Because everything developed after Newton, Keppler, Joule, and Boyle is just manipulation of the original laws of science. The laws aren’t patentable subject matter, so we should just scrap the whole system. Software is valueless to society because they don’t generate anything, they don’t do anything, they don’t solve problems, they just manipulate mathematics”

    I think you are just mathematically ignorant.

    Method of efficient gradient computation (No. 5886908) .
    Methods and systems for computing singular value decompositions of matrices and low rank approximations of matrices (No. 6807536) .
    Method and system for solving linear systems (U.S. Patent No. 6078938) .
    Cosine algorithm for relatively small angles (No. 6434582) .

    Math? what math? no math here! These are inventions…….. bah

  29. EL January 17, 2010 5:42 pm

    Mathematics becomes patent material via software. You pick out a research paper, you rewrite the paper in C++, you apply for a patent, and you are granted a monopoly on the mathematics.

    Anyone who think this will benefit the American economy is out of their mind.

  30. Gene Quinn January 17, 2010 9:28 pm

    EL-

    I would agree with you if you were right, but you are not.

    A patent on software does not grant exclusive rights to the math. Why is it so difficult for you to understand that? Between your incorrect understanding of copyright law and your incorrect understanding of patent law I really pity you. You are bitter and rather than inform yourself of the truth you seem content to cling on to you misunderstandings. You know, the world is not really flat.

    -Gene

  31. Blind Dogma January 18, 2010 8:06 am

    Now now Gene,

    EL is merely a thirsty drone. No need to be harsh.

    EL, have another nice big sip of my Kool-aid. The truth is what we want it to be.

  32. EL January 18, 2010 9:12 am

    Gene Quinn
    “A patent on software does not grant exclusive rights to the math.”

    So solving a linear system of equations is not math?!

    “you seem content to cling on to you misunderstandings”

    I think you are the one content to cling on misunderstandings. Explain how solving a linear system of equations is not mathematics.

  33. Gene Quinn January 18, 2010 9:22 am

    EL-

    Of course, not. When you solve a linear system of equations that IS math. But we both know that software is not a linear system of equations and you cannot solve a software program.

    To prove the point, please go to http://www.ipwatchdog.com and right click to see the source code. Then solve.

    I await your response, and I am eager to see what the mathematical equivalent of html and php for my homepage is. We both know you won’t do it, and we both know you can’t do it, and we both know you will have some lame excuse.

    You are quite pitiful.

    -Gene

  34. Mike January 18, 2010 9:25 am

    First, you can’t talk about claims without having the claims in front of you. Second, all of the claims require the use of a computer, bus, or other processor, thus limiting the “MATH” to a process in the computer. Most of these claims are very weak IF a single paper describing the algorithm is available greater than 1 year prior to the application filing. I do not believe IBM, Microsoft AMD or others would apply these patents in litigation just for that reason.

    IBM gets 4,000 patents a year. That is more than 10 a day, most of which are junk. I agree with that and those patents that are anticipated or obvious should not be allowed. IBM applications contain 90% identical text with some prior application and only 1 or 2 new paragraphs. Most of those 2 paragraphs usually aren’t that novel. I don’t think IBM deserves new patents to junk.

    The problem with abolishing patents is that the good guy, opening a new business is unable to protect himself from IBM, Microsoft, AMD and others from copying his new process. He will never get paid for that process, no matter how novel. Mathematical processes used in novel methods for increasing the speed, decreasing the memory used, and/or increasing the quality of the output deserve a patent. If someone used 3 or 4 existing mathematical formulas to reduce 1 terabyte of data to 1 megabyte wouldn’t that be valuable to society, wouldn’t Microsoft steal that process if it weren’t protected. Would a patent be fair to the working drone who developed that process on his own time? IF the problem were more complicated and required research and development, would the company that developed the process deserve protection?

    There are processes to protect against bad patents. Although nothing is free, if you have a research paper that discloses a process that is >1yr older than the patent you can either renegotiate licensing fees, shut up a troll that is using a bad patent, and/or defend yourself in court against inventions that are anticipated or obvious. If you receive a threatening letter from a patent holder, take the time to search and bust any bad patents. Pay attention to good patents, because even if you don’t agree, novel inventions are valuable and protect people from copiers.

    If you want to pre-emptively fight bad patents, develop a software methods database that describes both the algorithm used and the date of public disclosure. Make the patent database accountable for history and changes to records, that way there is no question about the date of public disclosure. Index both publications and patents to make the database useful and develop a common indexing that covers different languages. Even the pay databases do not have a good way to index software using a logical stepwise description, this is essential to make it searchable across languages and a variety of methods.

    I WISH SOMEONE WOULD DEVELOP A RELIABLE DATABASE OF SOFTWARE DOCUMENTS FOR USE AS PRIOR ART.

    US5886908
    1. A computer program device readable by a machine, tangibly embodying a program of instructions executable by the machine to perform method steps for efficiently computing gradients of a merit function of a system, the method comprising the steps of: a) inputting a least one parameter for which the gradients with respect to the at least one parameter are desired; b) computing the merit function of interest in terms of observable measurements of the system; c) one of solving and simulating the system to determine values of the measurements; d) expressing the gradients of the merit function as the gradient of a weighted sum of measurements; e) forming an appropriately configured adjoint system; f) one of solving and simulating the adjoint system to simultaneously determine the gradients of the merit function with respect to the at least one parameter by employing a single adjoint analysis; and g) optimizing said system by utilizing said gradients of the merit function.

    US6807536
    1. A method of processing data for use in Singular Value Decomposition (SVD), the method comprising: providing multiple entries that are associated with points in a space, the multiple entries being arrangable into a first m.times.n matrix; modifying values of at least some of the entries; and defining a second m.times.n matrix comprising the modified entries, the second m.times.n matrix being configured to be processed in accordance with Singular Value Decomposition techniques.

    US6078938
    1. A system for generating a plurality of output signals that represents a solution to a linear system of equations, comprising: means for receiving a plurality of coefficient signals representing a matrix; means for receiving a plurality of input signals representing an approximate solution to the linear system of equations; log means for converting the plurality of input signals and the plurality of coefficient signals into a plurality of log signals; means for summing the plurality of log signals to produce a plurality of sum signals; means for converting the plurality of sum signals into a plurality of inverse-log signals; means for generating a plurality of approximate solution signals in response to the inverse-log signals; feedback means for providing the approximate solution signals to the log means; and means for determining whether a predetermined stopping criteria is satisfied; means for generating the plurality of output signals by executing a sequence of computer program instructions for performing an iterative technique of solving linear systems, the iterative technique performing a plurality of arithmetic operations based upon the plurality on the inverse-log signals, the generating means repeating the iterative technique until the predetermined stopping criteria is satisfied.

    US6434582
    1. A cosine computation device comprising: an input bus comprising a plurality of input lines, wherein the input bus is configured to receive an input value; a logical processing unit coupled to the input bus, wherein the logical processing unit includes a first plurality of gates coupled to the input bus, wherein each gate of the first plurality of gates couples to two or more of the input lines, wherein the logical processing unit comprises N output buses, wherein at least one of said output buses includes (a) at least one output line which is coupled to an output of one of said first plurality of gates and (b) at least one output line which is coupled to one of the input lines of the input bus, wherein N is greater than or equal to two; an addition unit coupled to the N output buses of the logical processing unit, wherein the addition unit is configured to perform an addition of N binary numbers corresponding to the N output buses and generate a resultant number which corresponds to a cosine of the input value.

  35. EL January 18, 2010 11:08 am

    Gene Quinn

    “Of course, not. When you solve a linear system of equations that IS math. But we both know that software is not a linear system of equations and you cannot solve a software program.”

    Mathematics is not a linear system of equations. Mathematics is not solvable. Mathematics is a symbolic language. The symbolic language of mathematics is used to solve linear equations.

    This has nothing to do with the patent on solving a system of linear equations.

    “I am eager to see what the mathematical equivalent of html and php for my homepage is”

    Every computable expression can be expressed using a Turing machine. If an expression does not work on a Turing machine, it does not work on a computer. In addition, all computer software is equivalent to lambda calculus which is formal mathematics.

    Here is an interpreter for lambda calculus:
    http://lci.sourceforge.net/

    Again this has absolutely nothing to do with the patent on solving linear systems of equations.

    Your use of red herrings is not going to gain any ground.

    When you are ready to discuss the matter at hand, please let me know.

  36. EL January 18, 2010 11:20 am

    I think the core of your argument boils down to the following:
    Patent attorneys benefit from software patents; therefore, software patents are justified.

  37. blind dogma January 18, 2010 11:23 am

    Mike,

    Stop trying to ruin my Kool-Aid sales. Clear headed thinking and actually looking at facts has nothing to do with why software is math and patents are evil.

    Can I interest you in a free sample of Kool-aid?

  38. Mike January 18, 2010 11:44 am

    That does not summarize my argument.

    My argument is:
    If you develop new software you need to protect it. Bigger companies can produce software more inexpensively than you can. If you don’t want your ideas stolen by big companies protect it with patents.

    Copyright only works to prevent copying of your entire software package or a text printout of the code. Copyright does not protect your logical process, only patents can protect a software method.

    Bad patents do get issued, especially to the corporate giants (MS, IBM, AMD, …). The best way to protect against this is a good software database of “prior art” indexed to make searching easier.

    If there were no patents there would be no new software companies. You would have A) corporate goliaths making millions selling company software and B) individuals on wiki sites creating apps. The giants would never release any relevant code and anything new developed by wiki would be instantly copied by the big guys. The big guys win because no one else would ever be able to sell software, there would only be 1 or 2 suppliers that sell all commercial software (you think MS is bad now). The Microsoft Office with Acrobat, TurboTax, McAfee, … Although Microsoft is trying to do that now, new companies have the ability to produce new software packages (complete programs that perform a new and exciting processes, methods and/or products). Without patents Adobe PDF might never have existed and PDF format documents may never have been developed. Microsoft (or the like) would have snatched up the technology using their outsourced programmers, offered an inferior product and no one would have been able to use it well. People wouldn’t buy Adobe because everyone would have had PDF from Microsoft, but nobody would have used it because it would have sucked. Patents allowed Adobe to sell a product in the face of unfair competition. Patents allowed Adobe to invest in improvements and protect those novel improvements and market better products even as older patents expired and more PDF programs came on market.

    By taking away software patents you unfairly hinder small business and individuals who would be instantly copied and unable to develop market share in the face of the bigger companies.

  39. Mike January 18, 2010 11:48 am

    Does the Kool-aid come straight-up or with a mixer? I prefer mine shaken, not stirred.

  40. Arun SAG January 18, 2010 12:35 pm

    Good post ,but you should remember the following lines of Mahatma Gandhi

    “You assist an evil system most effectively by obeying its orders and decrees. An evil system never deserves such allegiance. Allegiance to it means partaking of the evil. A good person will resist an evil system with his or her whole soul.”

  41. EL January 18, 2010 12:50 pm

    “That does not summarize my argument.”

    I was talking to Gene.

    “If there were no patents there would be no new software companies.”

    How do you explain the open source and GNU movements?

    “Bigger companies can produce software more inexpensively than you can.”

    I think the reverse is true.

    “You would have A) corporate goliaths making millions selling company software and B) individuals on wiki sites creating apps. The giants would never release any relevant code and anything new developed by wiki would be instantly copied by the big guys”

    The big companies already do what you are describing.

  42. EL January 18, 2010 1:02 pm

    Mike,

    Why should literature not be patented? Do you beleive it should be patented?

  43. Gene Quinn January 18, 2010 1:19 pm

    EL-

    As anyone who can read can see, you are the one who is using red herrings and refusing to engage in a logical debate. You quoted me saying software is not math and then you responded: “So solving a linear system of equations is not math?!”

    I pointed out, correctly so, that software is not a set of linear equations, but offered you the chance to prove you are correct. I invited you to solve a very simple set of html and php lines of code, which you did not. You did not because you could not because software cannot be solved. I know that, you know that and everyone reading knows that. Yet here we stand. You claiming superiority in your argument and refusing to perform the simple task that you said you could perform, which is to solve a very simple sequence of code. Quite interesting.

    Now, either you will respond and solve the code or you will stand down, but I am not going to allow the pages of IPWatchdog to be a forum for you to spew your nonsense and then retreat. You ask all kinds of questions and I and others answer you, but that ends now. So… either put up or shut up. The choice is yours.

    -Gene

  44. Mike January 18, 2010 2:16 pm

    Open source and GNU movements are great for reproducing an existing system, creating a cloud network that is compatible with other programs. I like open source and I know that software developed in open source remains free as long as the developer does not put restrictions on it. One of those restrictions is copying for commercial use. Frequently the language of the use agreement says, “No copying for commercial use,” and “subsequent development is to be provided for open source.” Those rules apply only to those who copy the text. If you also look through the licenses, some allow use but retain ownership of commercial embodiments. Make sure you review in detail the agreements attached to the software you use.

    Additionally, every single advance developed through open source and GNU will be incorporated by Microsoft free of charge. Microsoft can and does incorporate certain aspects of GNU and open source, as well as Mozilla, Safari, and other systems. They do not give recognition to the source because they don’t copy verbatim, they copy the process. If Mozilla uses tabs, then Microsoft adds tabs. They don’t add the code verbatim, they just have their programmers write code that does the same thing.

    I gave an example above where Adobe developed PDF software in the face of competion through the use of patents. I gave an example here where Microsoft copied a non-patented idea blatantly and sold the updates to corporations and made money. Of course you don’t need money, so you will continue to develop in an utopic society where all needs are provided for free including the need to download software and mp3’s for free. Someone will always make money off of your advances. I understand you don’t care about return, that is your perogative.

    Writing software and producing a program that you can sell to earn a living. If you want to be your own boss and make a living writing creative code, the only way you can secure income is to either a) collect donations or b) produce a commercial product. I believe you will be more successful if you choose (b). You may even be able to quit the day job, if you only had a patent.

    Books are well protected by copyright. Copyright protects against direct copying and trademark protects against use of the works title. Without the literal text, the value of a duplicate drops off quickly. Courts have established procedures for determining infringement and punishment for copying. I gave examples where a corporation could copy a program without literally copying the text. Simply changing the memo’s and variables could change the code by up to 80%, what about adding random memos and reorganizing some of the If/then loops to do the same thing in a different order, changing the counts from 199 to 100 instead of 99 to 0. It wouldn’t be identical text but it would do the same thing.

    As a mathematics professional, would you be upset if you published a novel solution for a problem that was very crafty and creative (to a method of transmitting 3D images through TV’s without requiring glasses). You had that formula published in Journal Image Obscura. You are now looking to update a contract, grant, or other type of funding to continue your research (assuming you get paid for a living). Unfortunately, when you apply you are placed in a pool of 5 different mathematicians. But only 1 other mathematician is at your level of research and skill. You don’t get the grant, but the other mathematician does. 1 month later you see a paper published by the other mathematician describing your solution with some pretty color graphics published in SCIENCE(R). He doesn’t cite or reference your paper, his grant application is identical to the SCIENCE paper written 2 months after your paper was published and contains many of the same or similar solutions (he clearly copied your novel idea). Unfortunately, your career flounders and you drift into obscurity, the other guy lives a happy life and becomes the dean of a prestigious university, opens a small startup and becomes a billionaire all based on that one copied paper. If you had filed a patent before publishing your paper, you could have controlled how people used your invention. You would have had recourse to defend your invention and prevent someone from abusing your work to their benefit.

    But alas… No protection, no control. Just because you have a patent, doesn’t mean you can’t freely distribute the product, or get a nominal licensing fee from users, or have a schedule based on the size and monetary value of the corporation.

  45. blind dogma January 18, 2010 3:30 pm

    Mike,

    You can have it shaken.
    You can have it stirred
    You can have it straight up
    You can have it mixed however you want – just stop posting such incredibly logical pieces and trying to kill my Kool-aid sales.

    Have you seen my latest sales drive? – anti Mike earplugs with every five glasses.

    Hmm, on the other hand, Arun SAG’s post is delicious, especially if you consider that the “evil system” is the anti-patent group, those truly inspired to wreck the patent system, the MS’s of the world. If people listened to Arun SAG, they would realize the goodness of patent protection.
    Can’t let that be known.
    Must reinforce the belief that the evil is those who actually want those insidious property rights for what they create.

    Ooops, did I just hit the enter key and send that? How do I unsend…

  46. EL January 19, 2010 9:24 am

    Gene,
    “I pointed out, correctly so, that software is not a set of linear equations, but offered you the chance to prove you are correct.”

    Where did I say that software (general term) is a set of linear equations?

    I said the following patent:
    Method and system for solving linear systems (U.S. Patent No. 6078938) .
    Is a method of solving a system of equations and hence a patent on mathematics.

    You respond:
    “Of course, not. When you solve a linear system of equations that IS math. But we both know that software is not a linear system of equations and you cannot solve a software program.”

    And then to stray even more, you go into a discussion about PHP and html.

    These are red herrings because you are changing the subject instead of talking about the linear system of equations patent.

    I’m still waiting on you to defend that the linear equations patent is not mathematics. When we get the linear equations settled, we can talk about these other subjects.

    Mike,
    “Make sure you review in detail the agreements attached to the software you use.”

    People have the ability to create any license they want. With or without software patents, people are still going to license their software for certain uses.

    “Additionally, every single advance developed through open source and GNU will be incorporated by Microsoft free of charge. Microsoft can and does incorporate certain aspects of GNU and open source, as well as Mozilla, Safari, and other systems. They do not give recognition to the source because they don’t copy verbatim, they copy the process. If Mozilla uses tabs, then Microsoft adds tabs. They don’t add the code verbatim, they just have their programmers write code that does the same thing.”

    And by this you figure the patent system is working? The reason is because they know Microsoft has so many patents that they are violating at least one of them. If they sue, Microsoft counter sues with something.

    As far as prior art…..
    Even if a patent is invalid and even if it can be overturned in courts, the damage is already done by the time the patent is thrown out. Look at amazon and Barnes and noble. Barnes and noble won the patent dispute in the end, but they lost overall.

    “You may even be able to quit the day job, if you only had a patent.”

    Most software patents are unlicensed and collect zero revenue.

    “Books are well protected by copyright.”
    But authors cannot protect some aspects with copyright like they could with patent protection. Are they not deserving of protecting their inventions? I’m simply using the same arguments being made for software patents and applying them to literature. Each of these arguments can be applied to literature and even art.

    Should these following images be protected by patents:

    http://images.google.com/images?hl=en&safe=off&client=firefox-a&channel=s&rls=org.mozilla:en-US:official&resnum=0&q=fractal&um=1&ie=UTF-8&ei=2vxUS7i1GOSdtwez8uz7DA&sa=X&oi=image_result_group&ct=title&resnum=4&ved=0CCcQsAQwAw

    All of these images were generated by software algorithms. If you patent the software algorithm used to generate the image, you patent the image.
    http://mathworld.wolfram.com/Fractal.html

    “Simply changing the memo’s and variables could change the code by up to 80%”

    Structured programming makes it hard for people to break up the structure of copied code. At best, you could shoot for a independently created defense, but software is so large that the defense would be very hard if you tried to duplicate even half of a software project. Software requires a lot of expressions to do anything interesting. You could have five pages of code for just displaying a window that does nothing at all. Any interesting piece of software will have thousands of functions and tens of thousands lines of code. You would be very surprised at how many lines of code it requires just to create a simple text box. You have to control the position of the blinking cursor, where in the rectangle to print the text, keep track of the dimensions of font, detecting key presses, and many other things.

    “As a mathematics professional, would you be upset”

    What you are talking about is plagiarism.

    “If you had filed a patent before publishing your paper, you could have controlled how people used your invention.”

    I don’t think you fully understand the consequences. In addition, mathematics is considered to be a discovery and not an invention.

  47. Gene Quinn January 19, 2010 9:34 am

    EL-

    Once again, you are incorrect and you are ignoring reality. Please see your comment #34 above. You do not say what you claim to say in comment #48. So if you read what you ACTUALLY said in comment #34 you will find where you said that software is a set of linear equations, and you will notice that you NEVER mentioned the patent number you now claim was the basis of your comment. You will notice that you quoted me out of context and were saying that software is a set of linear equations in response to what I said previously.

    So, once again, I await your solution to a very simple HTML/PDF webpage. If software is a series of linear equations that can be solved then you should have no problem solving the IPWatchdog.com homepage. I know I am anxious to see the solution. I know, like everyone else reading, that you are back tracking and using evasive misdirection to weasel your way out because you know that software is not a set of linear equations and you know you cannot solve software, or even a single webpage, despite your boasting above.

    I think your problem is: (1) you clearly have no knowledge about the law; and (2) you think that you understand software and math better than I do and better than those commenting here. It is a mistake to believe you know more about math and you can resort to incorrect statements you have read elsewhere on the Internet and not be challenged. I am well versed in math and bet I have taken more math courses than you ever have, and I certainly know more about math and software than you do. So you can continue with your misdirection if you like, all it does is bring more readers to IPWatchdog.com, and for that I thank you!

    By the way, you were right about one thing…. math is not considered an invention. If only software were math you would be correct, but it isn’t, and given how you are unable to carry a logic based, rational debate it is clear to everyone reading that you either understand that and are playing devils advocate, or you simply cannot grasp the obvious. In either case, I feel sorry for you.

    -Gene

  48. Mike January 19, 2010 11:36 am

    EL,

    You are absolutely right. Each of the arguments can be applied to art. There ARE patents to methods of painting, methods of printing and methods of silk-screening to name but a few. Yes those functional claims to methods of accomplishing an artistic method are patentable.

    Your argument that software is nothing more than a book of ideas (as protected by copyright) is simply self-serving. You said I was “stupid” when I said that software accomplishes nothing and therefore is not patentable. Maybe I misunderstand your argument, but if software is merely abstract ideas then it could not accomplish a monetary transaction, could not compress an image, and could not obtain or transmit information. All of which are patentable, similar to the Morse signal patents of yore, this is no new phenomenon.

    I understand your frustration with software patents that may be issued to work that has been previously disclosed. A patent that has been issued that is anticipated or obvious is not valid. Unfortunately when interpreting claims you omit certain limitations to fit your arguments, that is not proper claim interpretation. A claim to steps A, B, C, D is VALID if steps A, B, and C are known and step D is new. Anyone in the world can do steps A, B, and C without fear of infringement. Anyone can do step D independent of steps A, B, and C without fear of infringement. If the claim reads on A, B, C, and D then that is what is required to cause infringement.

    You can be charged with infringment if you infringe a patent, as patents are presumed valid. If you want to practice a patented invention you should A) have a professional determine what is patented, B) have a professional assess the method you’re using, and C) have an opinion written describing why you do not infringe the patent. This must be done by a patent attorney because you do not properly interpret claims.

    The argument that there are too many patents, that the patents are invalid (without an opinion), or that you independently developed the software is NOT a defense to infringement. Although I bet that with proper claim analysis you would find little or no infringement. Often the statements you make, “The claims read on everything!” and “there is nothing you can do without infringing!” are not based on a proper claim analysis.

  49. Mike January 19, 2010 11:41 am

    EL – “People have the ability to create any license they want. With or without software patents, people are still going to license their software for certain uses.”

    My point is that not all GNU, open source, and “free” downloads are truly free. You may be able to use the software freely at home as an individual yet you may be obligated to pay a fee if you use the same software at work. If I never went to work, that software agreement might work for me. You may also be obligated to let the software originator own for all commercial purposes any software you contribute to the project. Your work may be sold for a profit and you could never see a dime. That is the credit and value you give your work.

  50. Mike January 19, 2010 11:48 am

    EL – “[Y]ou figure the patent system is working? The reason is because they know Microsoft has so many patents that they are violating at least one of them. If they sue, Microsoft counter sues with something.”

    By letting Microsoft get patents and refusing to protect your inventions, Microsoft can prevent any commercial competition. It is a defensive patent against any possible trolls, as well as against developing software companies and others that may pose a financial risk. You may be indemnified from any infringement if you legally purchased a copy of Microsoft. Again with the unfounded “they are violating at least one of them.” Microsoft understands the strength of each patent before they apply it in court. Many of the patents are merely scorecards to compare and trade with IBM, APPLE, AMD, etc. and will never enter litigation. It is there perogative to pay as much as they want for as many VALID patents as they want, and apply them as they wish. You have the option to obtain patents and protect the use of your inventions yet you choose not to. It may be an easy choice for you as you may have no innovations and therefore not have a lot to lose.

  51. Mike January 19, 2010 11:55 am

    EL – “Most software patents are unlicensed and collect zero revenue.”

    I would disagree. The majority of commercial software has some patents, Microsoft, Adobe, McAfee, and others. Even “Freeware” expects to collect a revenue if the software is used for commercial purposes. Computers are sold with existing software which is patented AND copyrighted. Unless you created your computer de novo from loose chips and unformatted drives, then you likely use patented software every day. There are even patents on the software that tells you monitor what to display.

    For playtime on the internet, you may have unlicensed copies of software that can be used at home without any fear of retribution. If you work in a small company without monitored software you may be able to use some of it without drawing attention. If you work for a software company and they don’t have licenses for the software they use, then they are leaving themselves open to fines and penalties even if a rogue employee uses unlicensed software temporarily.

  52. Mike January 19, 2010 12:13 pm

    EL – “All of these images were generated by software algorithms. If you patent the software algorithm used to generate the image, you patent the image.”

    Again, you are removing the limitations from the claims. There are claims to methods of generating images, yes. If you practice an unlicensed copy of the software, or generate a method of generating the images that uses the same claimed methods then you are infringing the patent. The patent protects the method of generating the image and may even protect the image produced. There is a lot of case law about infringement of patents and the products produced it is too lengthy a subject to cover here. I have no problems to claims directed to generating a fractal image if they are new and non-obvious. Someone may even find a way to generate them using fewer processor requirements, much faster than before, or even in higher resolution. Maybe they patented a way to retain the fractal properties while transmitting the image to a black & white printer. YES, all of those things are patentable, they have value, and if it was your job to do that you may want to protect your hard work so that someone didn’t use it without giving you credit. The only way to enforce your rights is to own the patent. By the way, if the fractal can be generated by other methods, then the image produced may not infringe the patent, there are a variety of tests and other factors to consider.

  53. blind dogma January 19, 2010 12:14 pm

    Did I say ‘anti Mike earplugs with every five glasses.” ?

    Special sale – anti Mike earplugs with every two glasses.

    You are killing me man.

  54. Mike January 19, 2010 12:31 pm

    EL – “Structured programming makes it hard for people to break up the structure of copied code. At best, you could shoot for a independently created defense, but software is so large that the defense would be very hard if you tried to duplicate even half of a software project. Software requires a lot of expressions to do anything interesting. You could have five pages of code for just displaying a window that does nothing at all. Any interesting piece of software will have thousands of functions and tens of thousands lines of code. You would be very surprised at how many lines of code it requires just to create a simple text box. You have to control the position of the blinking cursor, where in the rectangle to print the text, keep track of the dimensions of font, detecting key presses, and many other things.”

    At best you could shoot for an independently created defense – that is a defense against copyright but not patents. The farther away you get from the orginal text, the less likely they can prove direct copying. That is the point I am making – software cannot be protected by copyrights.

    Any interesting piece of software will have thousands of functions and tens of thousands lines of code – therefore a patent claiming a specific function will require many steps. It is often easy to design around a long series of steps. Therefore may independently developed software programs will NOT infringe existing software patents. You have to include all of the limitations.

    Structured programming makes it hard for people to break up the structure of copied code – but given a desired function, you could independently develop a structure to achieve the same text box with the same cursor position that did not use the copied code.

    Structured programming can be brought to a dead stop with just a few keystrokes, a missed command, a misdirected variable. The act of programming from development to finished software requires work, unique ideas, and solutions to achieve an interesting piece of software. Your insistance on comparing it to a fractal picture does not compare to your statement above. If you develop an interesting piece of software that accomplishes a novel function, someone like microsoft can have there engineers develop a similarly interesting piece of software that accomplishes the same novel function without ever looking at your code. Opening a simple window with a cursor clearly doesn’t rise to the level of novelty, but you cannot say IF there will ever be a new method of opening a new type of window that you have never seen.

    Alternatively – Does the software you use today function exactly the same as it did 20 years ago? If the answer is “Yes” then there is no need for any software patents as nothing new is being accomplished. If the answer is “No, the software I use today works better than it did 20 years ago,” then there is patentable subject matter, improvements, that someone paid to develop and they deserve compensation for those developments if they so desire. Patents do not prevent people from developing alternative ways to improve software, it only protects ones investment and innovation.

  55. Mike January 19, 2010 12:48 pm

    EL – “What you are talking about is plagiarism.”

    Yes, I described plagarism. Taking a piece of someones software and rewriting it to do the exact same thing without using the same exact text would be plagarism. It should be protected under copyright law, but if there are enough differences, the person has a defense against direct copyright infringement. Copyright is designed to protect against unauthorized copying of bodies of work. The book as a whole, the software on a copyrighted disk, the complete image. You are authorized to take snippets of books for comment as long as you don’t copy the image as whole, many play off of this freedom to copy snippets that cover 90%+ of a news article and post it on their own news page. Yes, would you be mad if someone plagarized your software and could get away with it? Can they get away with it? Depends upon how much was copied and how much was independent.

    What if the person didn’t directly copy your code, but cut out the part they liked? As you said before, structured programming makes it difficult for people to break up the structure. But does it make it impossible for them to take the lines out verbatim that accomplish a specific subroutine. If that subroutine does something great like doubles the processor speed by using 1/2 the calculations? What if that great subroutine is only 10% of the entire program? Is that protected by copyright?

    What if the person didn’t directly copy your code, but instead included the subroutine in the design of new software? If they began the design of a structured software program and used YOUR method of doubling processor speed at the initial design. They could design a whole program around your method without ever infringing your copyright.

    Only a patent could properly protect that novel subroutine from theft. Only a patent would give you the control to establish software licensing, to draw additional funding, provide a property right that protects your method.

  56. Mike January 19, 2010 1:15 pm

    EL – “I don’t think you fully understand the consequences. In addition, mathematics is considered to be a discovery and not an invention.”

    Even though I’ve described a way to copy your software and not infringe a copyright, I may not understand all of the consequences. I don’t understand all of the consequences of every action I take, I do understand most though. I understand that when I speed in a car I may have an accident or get a ticket.

    Perhaps we should discuss the consequences of “software patents.” IF I develop a new method of accomplishing a task using software, I should get a patent if I want to protect that method from plagarism, copying, and reverse engineering. A copyright will protect my software only from those who would copy my great software without a license or purchasing the software but would not protect my method from reverse engineering. I believe I understand many of the consequences of protecting software from copying. Are there other consequences I should be discussing.

    Mathematics is not an invention – No a purely mathematical formulae like the laws of physics, or PV=NRT from physics is not an invention. That is a discovery. If software is merely the mundane manipulation of formulae that does not actually require an input to generate an output, then surely there would be nothing new in software. It is simply the rearrangement of existing mathematics to achieve the same input and output. It does nothing but give the same input and output, therefore we are all wasting our time and should go home to play video games. I guess I just proved how “stupid” I am, therefore don’t feel bad for me because I will be content in my ignorance playing video games.

    Alternatively, software could have different inputs and outputs. There may be different ways to get from point A to point B, there may be better ways to structure a program that will make it more efficient, make it have better resolution or make it accomplish a new task. Since I believe software has improved over the last 20 years: there has been developments and innovations that lead to better programs; there have been new programs developed that manage data better; and there have been new programs developed that accomplish new tasks. Then I believe that patent protection is the best way to protect those innovations from reverse engineering and/or copying of those improvements that make my program better than the competitors.

    A few examples of innovative products that required patent protection – PDF file formats were not around 25 years ago, someone had to develop that technology, make an innovation in the way document images are kept and processedp; ZIP files were not around 25 years ago; oh and fractal analyses weren’t around 40 years ago (fractals were but they weren’t used as an analysis tool).

  57. Mike January 19, 2010 1:43 pm

    EL – “Method and system for solving linear systems (U.S. Patent No. 6078938) .
    Is a method of solving a system of equations and hence a patent on mathematics.”

    US6078938 recites several required steps, not just “mathematics.”
    1. A system for generating a plurality of output signals that represents a solution to a linear system of equations, comprising: means for receiving a plurality of coefficient signals representing a matrix; means for receiving a plurality of input signals representing an approximate solution to the linear system of equations; log means for converting the plurality of input signals and the plurality of coefficient signals into a plurality of log signals; means for summing the plurality of log signals to produce a plurality of sum signals; means for converting the plurality of sum signals into a plurality of inverse-log signals; means for generating a plurality of approximate solution signals in response to the inverse-log signals; feedback means for providing the approximate solution signals to the log means; and means for determining whether a predetermined stopping criteria is satisfied; means for generating the plurality of output signals by executing a sequence of computer program instructions for performing an iterative technique of solving linear systems, the iterative technique performing a plurality of arithmetic operations based upon the plurality on the inverse-log signals, the generating means repeating the iterative technique until the predetermined stopping criteria is satisfied.

    I’ll break it down for you here –
    “means for receiving a plurality of coefficient signals ” – mathematical equations do not have a “means for receiving.” A formula on a piece of paper does not have a “means for receiving” therefore more is required to get the input.

    “means for receiving a plurality of input signals representing an approximate solution to the linear system of equations” – need I restate, ok I will. mathematical equations do not have a means for receiving. This step does involve “an approximate solution to the linear system of equations.” Wait, this step does use a mathematical formula to fit a system of equations. Obviously if there is a formula there must be a solution. Wait, this says, “approximate solution.” I have never solved a problem for my calculus teacher and reached an “approximate” solution. This must be an error.

    “converting the plurality of input signals and the plurality of coefficient signals into a plurality of log signals” – wait are there different things I can do with an input of signals and an input of coefficient signals. I guess there is only one formula, one equation, one thing to do, this is JUST math and nothing more. There’s nothing to see here.

    Back to being serious:
    “means for generating the plurality of output signals by executing a sequence of computer program instructions for performing an iterative technique of solving linear systems” – computer program instructions performing an iterative technique for solving linear systems – this involves repeating a series of computer program instructions to achieve a solution to a variety of linear systems. A mathematical formula would not have instructions, a mathematical formula does not achieve a solution without the hand of man, there is an input, a series of steps, manipulation of data (mathematical) through several techniques to generate an output (mathematic). The data would not however process themselves absent the actions of a man and an output would not be generated absent the hand of man. This patent is to a process ‘by the hand of man’ that generates a plurality of output signals that represents a solution to a linear system of equations.

    To simply say it is “mathematical” because it uses a “solution to a linear system of equations,” ignores 90% of the claim. It has a means for getting several types of input, generating intermediates, developing a solution and generating an output. The mathematics is a small part of one step. This claim would not read on a person with a piece of paper graphing a variety of equations.

    If you have any questions about patent scope, the terms used in a claim or would like further information about protecting your intellectual property. Please present a well phrased question and I will attempt to address your concerns.

  58. Mike January 19, 2010 1:46 pm

    Sorry if I filled your inboxes, I just wanted to address each concern individually.

    Have a great day,

    Mike

  59. EL January 19, 2010 5:34 pm

    Gene,

    “You will notice that you quoted me out of context and were saying that software is a set of linear equations in response to what I said previously.”

    I think you need to reread #30 and #31 very carefully. Perhaps my word choice has caused confusion, so let me clairfy:

    A mathematics paper contains new results in the math world.
    A person can reduce the method to produce the results into a series of steps.
    A person can then rewrite the steps in a programming language.
    A person can then apply for a patent.

    In a basic nutshell, a person only has to replace the symbolism with the equivalent in a programming language to obtain a patent.

    “(1) you clearly have no knowledge about the law; and (2) you think that you understand software and math better than I do and better than those commenting here.”

    I agree that people can patent almost anything in software according to the current liberal interpretations of the law. But I, along with most computer scientist and mathematicians, disagree with software patents because of their abstractness. Software patents are causing problems now, and they will cause even more problems in the future.

    As far as #2, I obviously disagree. There has been comments on this subject by a very large number of computer scientists and mathematicians. I think it’s patent lawyers who think they know more about the science then the people who create and maintain it. Take Donald Knuth for example, he has stated that software and mathematics are the same. Do you know more then Donald Knuth about math and software?

    You want to assume that software can not be translated directly into mathematics. With one Google search, you could find plenty of information about Lambda calculus and how it relates to programming languages. Why do you refrain form doing this?

  60. EL January 19, 2010 5:55 pm

    Mike,
    “The majority of commercial software has some patents, Microsoft, Adobe, McAfee, and others”

    Sure they have patents, but are they gaining revenue from licensing the rights to the patents? Most of these patents are used only in the case of defense. Linux is probably violating 100’s of patents, and it does not have a license to them. This web site is using Linux. Has the owner invested in a patent search before taking this web site online? Did the owner obtain licenses to the patents? Look at how many web sites are running linux. Each of these web sites would need to obtain a license to use the patented processes.

    How many people could put up a web site if they followed the law? With 100 bucks, a person can have a web site up and running. How much would a patent search and patent licensing stack on top of the cost? Obviously, there would be a poverty of web sites if software patents weren’t being flat out ignored by most people who run web sites.

  61. Gene Quinn January 20, 2010 11:39 am

    EL-

    Re: comment #61 above.

    I am done debating you unless and until you provide the solution for the IPWatchdog.com homepage. In comment #48 you said you never claimed software to be a set of linear equations, which you clearly did say in several places, including comment 34. You seem to ignore this and continue to want questions answered by me and others without ever answering challenges posed to you.

    We both know you said software is a set of linear equations and can be solved. We both know you are dodging that because it is not correct and you cannot solve even a simple sequence of code.

    You are over matched in debate and by dodging repeatedly and deflecting you demonstrate to everyone that you know you have lost.

    I am more than happy to continue to debate and demonstrate I am correct, but first the solution for the set of linear equations that make up the IPWatchdog.com home page. If software is math this should be exceptionally easy. I can’t wait to hear the solution!

    -Gene

  62. Mike January 20, 2010 12:48 pm

    EL – “Sure they have patents, but are they gaining revenue from licensing the rights to the patents? Most of these patents are used only in the case of defense. Linux is probably violating 100’s of patents, and it does not have a license to them. This web site is using Linux. Has the owner invested in a patent search before taking this web site online? Did the owner obtain licenses to the patents? Look at how many web sites are running linux. Each of these web sites would need to obtain a license to use the patented processes. ”

    Your argument is that software patents hinder the use of software. Now you say that the software patents don’t hinder Linux from operating. Therefore the issuing of software patents will not hinder the use of the internet because Linux is probably the largest player and hasn’t received a notice of infringement. Therefore your objection to software patents are not that they hinder business, but that you don’t think the benefit of a software patent outweighs the value of public disclosure required. Since this argument is based on your opinion and not a fact, there is no point in continuing this discussion.

    The facts presented clearly show that the claims to “math” that you describe require software and are correctly classified as inventions made by the hand of man. Software has improved the quality of life and has improved over the last 20 years. Assuming that the computer sciences will continue to improve over the next 20 years, you do not know what inventions you are blocking or what is required to protect those inventions from being copied.

    Linux is probably violating 100’s of patents – really which ones? Should be easy to find at least one if there are so many out there. Linux may have entered into licensing agreements for those that are relevant.

    Computer scientists may feel that software is protected by copyright, I have shown ways around that. Computer scientists may feel that software patents hinder their freedom, depends upon the claims. There are ways to determine the scope of claims without overly broad statements that do not reflect the true scope of the claims There are also ways to design around most software claims, but you must take the time to properly interpret the claims. Although software patents don’t appear to hinder the Open Source community to a great extent, if they patented their innovations they could defend against the more aggressively litigated patents. At a minimum, a dated database of software processes that incorporates both patented and non-patented literature would dramatically reduce the issuance of any “bad” patents (needs to be verifiable with a date of public disclosure and a history of amendments).

    Software is innovative, requires the hand of man, performs valuable functions and generates usable products, therefore software deserves patents. There should not be specific exclusions for whole fields (like software) especially when someone small like i4i would be destroyed without patents. Patents protect the small guy who develops a truly innovative product, yet is ineffectual as an offense if directed to non-innovative common knowledge. Therefore, patents don’t hurt any more for the software industry than they do for anyone else in other industries.

  63. pop January 20, 2010 1:30 pm

    No software program is an island. Practical and functional requirements demand that any useful software program be built on the shoulders of giants. Hardware is what it is. The internet is what it is. End users demand convention, and despite all the convention around, they usually find that there isn’t enough. Most programs need to perform common tasks, such as writing to a disk or other device, sending and receiving requests over a network, opening, reading, writing, and closing files, and etc.. In addition, they must also provide a usable user interface with buttons, menu’s, tree’s, etc..

    If a programmer had to reinvent all these things, despite the functional and convention reasons not too, he would never have the time. If he had to license all of these features, he could never afford it. In the end, the thing that made his program unique, and possible innovative and patent worthy, would be lost. Only those companies that have so many patents that they can thwart any attempts to silence them can write programs in freedom.

    Few people advocate straight copying of source code, but lets face the facts, when it comes to software, the products we produce are so complicated and must meet such tight requirements by both hardware and user that the only way to innovate is to build on what others have done. I don’t feel like the current implementation of the patent system adequately does this for software. The current system boils down to the big players and everybody else is left out in the cold. This isn’t the good old days when a patent could cover an entire product, or most of it.

    Richard Stallman actually made a good analogy to software development when he compared it to music. People are only willing to tolerate new music which is slightly different from what they already know. It is almost impossible to create music from scratch, and even if you did, nobody would want to listen to it. All musicians are influenced by others and incorporate existing ideas into their creations and they aren’t prohibited from doing so.

    We need to find a balance between the extremely permissive system we have now, and no protection at all, in my opinion. I used to be more extreme, but the more I learn the more my opinions become tempered. Things aren’t always as they appear.

  64. Mike January 20, 2010 1:55 pm

    How much out there is free to use? The basic software (and hardware) for keystrokes, monitor display, reading/writing, etc., are pretty much known, available and not hindered by patents. The only people who are going to dispute these patents are the keyboard, monitor, and drive manufacturers not end users and not open source programmers. They are also the only ones who would understand the innovations and how they benefit the industry.

    Truly innovative software and/or hardware deserves patent protection. It is useful to stop competitors from stealing your invention, but may not be as useful when addressing open source use. Although, if the open source use becomes a commercial product based on your innovation, then you may have legal recourse if you have a patent.

    Patent protection for software will provide more protection for the innovation, where copyright protection is better at protecting the product, i.e. copying the disk, selling copied cds, sharing the program without proper license, unauthorized users, unlocking and distributing software, etc. If you have a patent, you can stop microsoft from doing the same thing using your innovation. If you have a copyright, you can stop the knock-offs from selling $2.00 copies.

  65. pop January 20, 2010 2:25 pm

    I purposely didn’t give any examples because that was not the point I was trying to make. Those tasks common to most if not all programs are not marketed to end users, but to the programmers who need them to facilitate the working parts of their program, if you will. I should be able to select or create the best possible solution for my circumstance. I don’t feel that patents add anything in this arena because people will strive to improve these tasks regardless of restriction.

    If I develop a new audio format and an algorithm to process it and I get a patent, shouldn’t I be able to write a program that allows people to use it? I would have to be extremely careful designing my program because everything from the layout of the user interface, to the way I write and read the audio data in a file can cause me to be sued. Look what is happening to Microsoft with i4i. They chose what seemed to them to be the best way to organize and store their document data and it landed them in court. i4i hasn’t settled yet, but that is probably because they are trying to milk more money out of MS.

    Having that audio format patent doesn’t protect me from other people stealing my work, it just means I have less people to compete with. No matter how I write my program, I’ll likely be infringing some patent on one of the basic tasks that programs must perform. When the companies offer me a cross-license, I’ll agree and then I’ll have to compete with them royalty free as though there were no patents to begin with. It will keep Joe bloke from writing a clone in his basement from competing with me, but not the IBM’s and Microsoft’s who are the real threat anyways.

    There are certain building blocks for all software and I think we need to keep patents away from them because they only do more harm than good, in that area, in my opinion.

  66. Mike January 20, 2010 4:38 pm

    i4i is actually a good example of patent protection. From the court documents, Microsoft did not do a good job defending itself (acted like the cock-of-the-block with poor arguments and unsupported statements). According to i4i, they plugged an XML editor to Microsoft, Microsoft reviewed the XML editor, copied it (either code or function) and then sold their own version of i4i’s product. Microsoft would not have developed that type of editor without i4i. Microsoft stole from i4i.

    Patents add protection from MS taking your invention. MS can take your invention (without patent) add it to their invention (with patent) leaving them with all the software and all the protection. You have 1/2 the software and none of the protection. You then have nothing to bargain with either.

    Without a software patent, MS or others, can engineer a copy of your advance and never give you credit, never provide any compensation, and sell the innovation for money to corporate monkeys and lawyers (one of these doesn’t throw as much poo!).

    There are ~64,000 US Patents with “Audio AND format.” Of those greater than 1/3 are expired. Make a table of the patents, the innovation, and the issue date (or expiration). Everything that has expired is yours to use without any fear. Of those that are still in force, many will not be related to the format you are creating. That leaves the few that are directed to the type of audio format you are creating, you can usually navigate a path around those patents to create your own audio format. After the first pass at this excercise, you will have a database that can be quickly and easily updated. First pass is going to be very time consuming and brain numbing tho.

    Someone, somewhere invested time and money to create a great software program that solves a problem. To simply say, “I should be able to select or create the best possible solution for my circumstance. ” Someone who makes a living drafting code, gets paid for how well their code is written, develops a time intensive and elegant solution. You have the right to copy that without paying them for their work. This is because you deserve it. The more advanced the improvement, the more it costs, the more people will want to copy it. In order for me, or my company, to stay in business, I need to pay to develop better solutions and I need to pay for additional research. Patent protection is required.

  67. pop January 20, 2010 4:49 pm

    My point was that some problems are going to be solved anyways and for their own sake because they are keeping you from doing what you need or want to do. If I am Julius Caesar and I need to get across a river, then I am going to find a way across regardless of weather or not anybody else uses it, because I need it. There are some rivers, so to speak, blocking all programmers from reaching their goals, and I would argue that we should all share our bridges, since we are building them anyways, instead of allowing people to make a business of them. I would argue that sharing them actually provides everybody with more and better bridges, if you will allow me to continue the anology.

    i4i may have been a bad example. I am not familiar with all the details of the hearings. I have read i4i’s patent but that is about it.

  68. Mike January 20, 2010 5:20 pm

    Each patent owner has that option. But shouldn’t the person who develops get the option not the person who steals? I have a garden, someone needs food, they can ask me for food and I can make an offer to them based on how much they earn. Walmart shouldn’t get my vegetables for free so they can sell them to everyone else. But I might be compassionate to the neighbor on the corner. That is my choice not yours. I can also choose to sell my tomatoes to Walmart and earn a lot of money, while giving the brussel sprouts to the neighbor. Without a patent I lose that control.

    No company is going to pursue each and every individual programmer. They will sue the providers of hardware and software. Thus the danger of lawsuit increases with the visibility of the individual or company. If you work for a company and they develop software, they should have a good picture of the patents surrounding their technology. A person at home should let Linux or Open Source worry about patents.

    People can help by developing an open source database that a) includes patents and literature, b) records time/date/history, and c) indexes the information described/claimed in plain language.

  69. pop January 20, 2010 7:39 pm

    You use the word steal in such a menacing manor. In your example you used a physical and exhaustible resource, the vegetable. If I write a library of code, that is no exhaustible, and even though it is physical in a sense it doesn’t carry a lot of the same expenses for reproduction and transport that other physical items do. Also, in your example, you were obviously growing more food than you personally needed.

    In the software world I can have a great idea for a new process, find a way to implement it, and get a software patent. However, that great idea can’t exist alone and needs other code to make it useful or to make it run. I have to write that extra code or get it from somebody else or my invention is worthless.

    Here are two scenarios for that extra code.

    1) I write it myself, consuming extra time and therefor , resources. I spend more money and time trying to get a patent for it and then attack my competitors with it if they try to write similar code.

    OR

    I license the extra code I need from somebody else at great expense and profit to my program.

    Either way I have to also fend off patent attacks from my competitors for their junk code too.

    OR

    2) The patent office stops giving away patents for every application that crosses their desk that pertains to software, everybody shares their extra code, you get what you needed for free. You add a little bit to it a little time and expense to yourself and the next person benefits that much more.

    No lawsuits, no wasted money, no wasted time.

  70. The Mad Hatter January 21, 2010 12:33 am

    Busy week. OK, going back to my original response:

    1) Patents are garbage.
    2) Copyrights are garbage.
    3) Trademarks are garbage.

    Now, you may not like the above, but it’s true. The problem is that all three forms of ‘IP’ are based on legal concepts that are centuries old, and don’t take into account new technologies. For example, software ended up being classed as a ‘copyrightable work’ but it has nothing in common with a book. Blog posts are covered under copyright. Is that the correct form of protection we should use for them? I don’t know. Maybe we need more than one form of copyright, to cover different types of material. Should a poem get the same protection is a history book? Should a novel get the same protection as a blog post? Should all stakeholders be treated equally, or should some recieve preferential treatment?

    Software is also, at least in the USA covered under patent. Should it be possible to use more than one type of protection for a work? If so, why, and does it bring value to society.

    And why include Trademarks as IP? There’s nothing creative about a trademark, it’s function is to provide the purchaser with protection that they are getting the ‘real McCoy’ instead of a knock off. If I sell counterfeit copies of Microsoft Windows, I’m hurting both the purchaser and Microsoft. Also should you have to ‘defend’ your trademark? You’ve filed for it – it’s yours. If someone tries to steal it, yes, you need to move. But Monster Cable attacking Monster Mini-Golf for trademark infringement? Does this seem reasonable?

    The United States (and all other nations) need to look carefully at the IP laws. Do they make sense. Are they delivering the maximum return for society, If not, is there another law (like Free Trade) that is interfering. Should terms for all patent types be the same, possibly software patents should be 5 years, or 50 years, whereas pharmaceutical patents might work best at 10 years (note that I am just tossing numbers out – this needs to be studied carefully, and heavily peer reviewed).

    Another issue is IP ownership. Books are written by one or more people, generally no more than three people. Software projects like Microsoft Windows may have thousands of contributors. In my opinion ownership should permanently vest in the writer and his/her heirs and be non-transferable. Software needs to be handled differently because of the number of contributors. Work for Hire is one concept used, is it the right one?

    Now there were a lot of responses saying that when the US did one thing, that freed a bunch of patents, that the Asian manufacturers took advantage. What did you expect? If the US Government wanted their own companies to be the ones to take advantage, it should have structured the deal so that would happen, or not have opened up it’s borders for trade.

  71. pop January 21, 2010 7:27 am

    -Mad Hatter

    A post like that shows your ignorance of copyright law. You talk as though there is one copyright law for everything, and that is simply wrong. If you were correct, the copyright law would be a page long, not several hundred pages. There are all kinds of special rules for music, software, libraries, etc… you should try reading it next time before you post something like that.

  72. blind dogma January 21, 2010 10:44 am

    pop,

    Just because you stopped buying my Kool-aid doesn’t mean that everyone else has.

    Drink up Mad Hatter, drink up. When you buy your next glass I will throw in the anti Mike earplugs, so that his reasoning won’t affect you.

  73. The Mad Hatter January 21, 2010 12:42 pm

    Pop,

    Try reading what I wrote before you respond. And then think a bit. The basic rules are the same for everything that can be considered copyrightable material. You may think that this is good. I’m not so sure about that. A book for example often has value several hundred years after it’s publication, I’m re-reading ‘A Midsummer Night’s Dream’ by William Shakespear at present.

    Software doesn’t hold it’s value in the same way, in fact software is often obsolete (out of use) within ten years, and almost always obsolete after twenty years. Should software have the same copyright term as a book?

    bilnd dogma,

    I prefer Coke. I have one of them wasp waisted bottles on my desk right now.

    The Kool Aid I leave to the patent maximalists 🙂

  74. pop January 21, 2010 12:53 pm

    -Mad Hatter

    I did read what you wrote…

    “Blog posts are covered under copyright. Is that the correct form of protection we should use for them? I don’t know. Maybe we need more than one form of copyright, to cover different types of material. ”

    Does that look familiar? There are rules to cover different types of material. Maybe you should be more specific about which differences you would like to see. For example, a library can check books out, but you can’t do an online music library where songs are “checked out”, because it is specifically forbidden in its own section.

    I would personally like to see copyright reduced back down to 70 or 50 years, possibly extending to the life of an individual author. That is my personal opinion though.

  75. EL January 21, 2010 6:26 pm

    -pop

    I certainly think copyright has become too strong over the last 20-30 years. Ever listen to the Beastie Boys? They had a lot of samples in their music. I think its interesting that modern groups could not afford to do that now because of all the licenses around it.

    As IP continues to grow stronger, arts and sciences become weaker.

  76. The Mad Hatter January 21, 2010 11:19 pm

    EL,

    There has to be a balance between creator rights and the rest of society. My concern, and one that I think that Gene would agree with (or he wouldn’t have this blog) is defining that balance, and then getting it enacted into law. For example take the I4I v. Microsoft case. Based on the rulings that I’ve read (and I haven’t read all of them) Microsoft was as guilty as hell of stealing I4I’s ideas, and implementing them. I4I deserves protection against that sort of thing, but how much protection and for how long?

    I don’t know. I don’t think anyone knows, as there haven’t been any good peer reviewed studies. There have been a bunch of studies done by ‘interested parties’ which are slanted to say what they want, for example Microsoft has sponsored some studies, which toed the Microsoft party line. IBM has also funded some studies, which toed the IBM party line.

    And as Ronald Riley has pointed out, the big companies have the ear of the politicians, because they can afford the costs of lobbying. The smaller companies, and individual artists/inventors can’t. So you end up with situations like the one in Canada, where an artist’s estate is suing the large recording companies for what could be up to $6 Billion (if class status is achieved). I know a lot of artists who have been ripped of by the recording industry (disclosure – I have a recording studio in my basement, and know a lot of musicians).

    Here is a recent article about Recording Industry rip offs that I wrote, for those who are interested.

  77. Gene Quinn January 22, 2010 10:00 am

    Mad Hatter-

    I agree with what you say. The key is balance. I have tried from time to time to get into a discussion about how much is enough protection. I am on record throughout many posts saying that a one size fits all patent system is crazy. It should be completely obvious that for some inventions 20 years is way too long, perhaps 16 years too long. In other situations, where there are massive financial costs required to get to market perhaps 20 years is not enough for the revolutionary innovations that we want. We need to have this dialogue. Pretending that software has any useful life past 3 or 4 years is foolish. Similarly, having the USPTO take 5 to 6 years to issue high tech patents is ridiculous because in many instances the life cycle of the innovation is already over. We need quicker patents with shorter term. That would significantly jump start business and push innovation forward. It would let businesses innovate, get patents of reasonable duration and acquire investment to expand and hire.

    I think pharma and biotech probably need longer than 20 years given the massive ($1 billion or so) funding required to get to market and the highly speculative nature of innovation. Everyone focuses on the blockbuster drugs where companies make several billion dollars a year, but statistically blockbusters are only about 10% of all drugs, and 70% or more of drugs lose money, some substantial sums.

    Tom Field, a professor of mine years ago at FPLC, did a survey of in-house people to see what impact changing patent term would have on R&D. My recollection is that in most industries a patent term of about 8 or 9 years was enough. This makes sense when you factor in that most patents don’t last past 8 years because the cost of maintaining the patent and paying the second maintenance fee becomes significant when the patent is not useful commercially. Even more fall into the public domain at 12 years, when time runs out to pay the third maintenance fee.

    I disagree with Ron Riley. There is a reason why Congress has never been able to get first to file and other changes that would negatively impact individual inventors and small businesses. There is a huge lobby that has always won out against well funded businesses. With 70% to 80% of new jobs being created by small business and patent attorneys typically siding overwhelmingly with individual and small business needs it is simply factually incorrect to make the statement that Riley makes. Of course, on the copyright/artist side, it is a totally different story altogether.

    -Gene

  78. Mike January 22, 2010 10:02 am

    There is definitely a disconnect between the value of the item being protected and the level of reward. A patent to a sound card should not get royalties from the whole computer sale. Likewise the reward for a software patent should be in line with the contribution to the program.

    For lack of “novel” computer code, I’ll use simple examples. A patent to a counting loop that is slightly more accurate than prior counting methods would garner a small amount of patent protection, should have a small reward if infringed. An atomically accurate timer that can keep a steady time for 250 years guaranteed used in satellite and remote stations where accuracy is absolutely required and repair is impossible, may have more value. The first is simply a more accurate way of doing the something that has been done since the first computer program was written, a simple loop. The second is a technical advance, that if it has more than a simple if(>) then loop may actually contribute dramatically to society, cost a lot of money to create, and is more than just a 1/2 hr hobby with shared programming.

    Your argument seems not to focus on the whole industry but rather a subset of the industry. You use open source, it is cheap to create, there should be no patents to this basic type of work. There are other parts of the industry that require protection, some programs cost more than a little spare time to develop and have more innovation than just cobbling together some existing code. The level of innovation should dictate the worth of the patent and to some extent it does. But there are examples of irresponsible jury verdicts. This happens in every industry and is unfair and incorrect. To say that it prevents all software development and makes it hazardous for you to use open source probably is not responsible either. Do you live in fear of getting a cease and desist letter every time you log into your computer? The companies with software patents don’t even know you exist.

  79. Mike January 22, 2010 11:27 am

    Just reviewing all of yesterday’s post (I was out), and noticed that someone thought that MONSTER mini-golf could be sued by MONSTER(tm) cable.

    Not true, trademarks are broken down to separate classes such that even if you called it “MONSTER CABLE” mini-golf, you would still have to demonstrate a likelihood of confusion which should be small unless there are extenuating circumstances. Now if the both used the same font and design for MONSTER that is seen on the MONSTER energy drinks, they could be guilty of trademark infringement because MONSTER energy drinks didn’t endorse MONSTER mini-golf or MONSTER cable and because they used the same font consumers would assume they had.

  80. Mike January 22, 2010 12:00 pm

    [A]t least in the USA covered under patent. Should it be possible to use more than one type of protection for a work? If so, why, and does it bring value to society.

    As stated before each form of protection offers a different purpose. Patents cannot be used to protect ideas and copyrights can’t be used to protect functions. Thus a painting is well protected by copyright because it is an artistic work that has value, if you deviate from the original artist you lose value rapidly. A bridge painting by Monet is worth more that a bridge painting by Mik-ey (probably, unless you want to buy a bridge painting). Patents protect inventions as defined in 35 USC 101. Re-read the whole post for several examples how a patent can better protect software than copyright if someone reverse- or copy-engineers(tm) your software.

    Trademark is well defined internationally. Trademarks prevent someone from imitating a famous brand and ruining their image. For example, if I buy “GUCCI” shoes and get the knock-off “GUKKI” shoes by mistake, I will have been harmed because I didn’t buy the product I wanted, GUCCI will be harmed because they lost sales that they developed through good name and advertising. Finally, GUKKI gains both financially and from GUCCI’s advertising. Therefore Trademark is harmonized, works well, and everyone understands what it protects.

    Novel software requires all three. A copyright is required for the code to prevent direct copying (the $2.00 copy on the corner, with the DVD’s and CD’s). We all agree that type of protection is required and protects against what everyone considers as stealing. A trademark is required to prevent knock-offs. You don’t want someone opening “IPWatchBLOG” and redirecting you there. Patents are required to protect you from your competitors.

    Apparently this is more controversial because “I might not have an example, but everything’s patented and that’s wrong.” This argument is difficult because without patent examples I can’t explain exactly what each patent covers. A good database of existing software and patent literature with an understandable and uniform index might help software engineers AND patent examiners find code they need, find code that is not patented and help others find their new codes thus preventing engineers from using patented software and preventing examiners from issuing bad patents.

    If you give me one example patent and show how it interferes with your programming, I will likely be able to design around that patent for you or the patent is anticipated. Software patents require many different limitations to get a patent and are often more narrow than the average reader would suspect.

  81. The Mad Hatter January 22, 2010 12:43 pm

    Gene,

    The problem is how to define balance. I wouldn’t even trust me on this one, as I have a vested interest. My mother-in-law is the poet laureate of the Temiskaming District, my wife is a singer/songwriter (who is doing a concert in England two weeks from today), my daughter is a professional photographer, my oldest son is a poet, the in between son is a film maker, and I’m a writer. I have a lot of friends who are musicians, film makers, and writers, many of whom are doing this full time, like Tom, who I recommend highly.

    So on the copyright side, I have a vested interest in artists rights. This puts me at odds with the RIAA/MPAA, who a lot of my friends call the ‘Mafia’, because they have no interest in artists rights, in fact they’d like to see them abolished, though they won’t say that publicly (you can read one of my rants about this here).

    I also have a vested interest on the technical side – two close friends own a catalytic converter manufacturer (disclosure – I used to work there). In several cases we had to hold back product ideas, because someone had patented a natural process, there was no feasible way to get the patent overturned, and it was scientifically impossible to work around the process. At the same time, we developed another emission control system that we probably should have tried to patent, even though parts of it were pretty obvious, as it worked in a slightly different way than anything else that had ever been designed. If you follow this link <a href=" “>you’ll see my name on the letter from the California Air Resources Board approving this product for sale in California.

    One of the issues that I keep on seeing is the big guys (Microsoft, EMI, etc.) making anti-competitive moves against the little guys. For example the people who produced Star Wreck used The Pirate Bay as their distribution mechanism. So did Nina Paley with Sita Sings the Blues. Nasty Old People was released exclusively on The Pirate Bay. So now the MPAA/RIAA have managed to get a court injunction forcing internet service providers in Italy to blog The Pirate Bay, meaning those artists who use it as a distribution mechanism are cut off from customers in Italy. The problem is that none of these people are big names, and they can’t afford to counter-sue to maintain the right to their distribution platform.

    And of course it’s the same with patents. How many times has Microsoft been hit with a patent infringement lawsuit? I know a lot of people who claim it’s because they have deep pockets, and that they are highly visible. But, anyone who knows anything about the industry knows that Oracle is damned near as big, and they don’t get hit with as many lawsuits. That’s because Microsoft appears to be a kleptomaniac, and Oracle doesn’t. Or maybe they hide it better 🙂 Same with IBM, they don’t get hit often either.

    So of course Microsoft wants protection against patents. I suspect that they may be the worst serial infringer in history. To quote Andrew Grygus from his article ‘2003 and Beyond‘:

    Two cases cleared for trial threaten every version of Windows from Windows95 on (Q7, Q8), and if either wins, it will cost Microsoft the big bucks. Microsoft does lose in court pretty regularly, since they’re clearly guilty most of the time. When they lose, they negotiate a settlement incorporating a nondisclosure agreement. This costs them extra, but is well worth the cost, because the public never learns the true extent of Microsoft’s violation of laws and ethics.

    Anyway, enough ranting. I should do something productive.

  82. The Mad Hatter January 22, 2010 12:48 pm

    Just reviewing all of yesterday’s post (I was out), and noticed that someone thought that MONSTER mini-golf could be sued by MONSTER(tm) cable.

    Monster Mini-Golf was sued by Monster Cable. Article from the Consumerist here and a write up explaining things on Monster Mini-Golf’s website. I didn’t think anything, it happened.

  83. The Mad Hatter January 22, 2010 12:49 pm

    Mike, an additional point, I will no longer buy anything from Monster Cable for my recording studio.

  84. Mike January 22, 2010 3:50 pm

    Your article proves my point, MONSTER cable went home with their tail between their legs.

    “Monster Cable has decided to stop pursuing a trademark infringement against Monster Mini Golf. Judging by the post-settlement letter Noel sent the MiniGolf people, it seems that after both parties kicked their lawyers out of the room and talk directly, they were able to come to an amicable solution. Monster Cable will stop opposing the MiniGolf trademark and will cover MonsterMini Golf’s attorney fees. ”

    Monster cable clearly didn’t understand Trademark law and once it was explained to them, they realized there was ZERO likelihood of confusion. A perfect example of trademark law working well and MONSTER cable will never make that mistake again.

  85. The Mad Hatter January 22, 2010 4:23 pm

    Um, not it doesn’t prove your point, or Monster Mini-Golf wouldn’t have had to hire an attorney. Here’s some text from Wikipedia:

    Trademark and Patent

    Monster Cable has aggressively protected its name and trademark by opposing applications for registrations for marks that include the term “MONSTER” at the United States Trademark Office. In addition, lawsuits have been filed in a number of cases.[12] Monster Cable CEO Noel Lee defended these actions by saying “We have an obligation to protect our trademark; otherwise we’d lose it.”[13] Monster Cable owns many trademarks[14] and patents[15] listed with the US Office of Patents and Trademarks.[16]

    In 2009 after receiving numerous comments from consumers in relation to the Monster Mini Golf dispute Monster Cable CEO Noel Lee stated on Fox Business News that Monster Cable has to balance what it does in trademark protection with what the public thinks it should do.[17]

    Monster Cable’s targets include:

    * Snow Monsters (a kid’s skiing group)
    * MonsterVintage, small used clothing store
    * Monsters, Inc., an animated feature film[13]
    * Monster Garage, a television series[13]
    * Monsters of the Midway, a nickname of the Chicago Bears football team
    * Fenway Park’s Monster seats
    * Monster.com employment website
    * Monster Mini Golf[18][19]
    * Monster Balls Paintballs manufactured by JT Sports
    * Monster Transmission

    On April 1, 2008, Monster Cable sent a cease and desist letter to Blue Jeans Cable,[20] claiming infringement on certain patents[15] owned by Monster Cable. The owner of Blue Jeans Cable, Kurt Denke, previously a litigation lawyer, responded with a letter detailing flaws and shortcomings in the allegations of patent infringement, adding “Not only am I unintimidated by litigation; I sometimes rather miss it.”[21] In this correspondence, Denke also observed the possibility of Monster Cable avoiding federal income taxes by using a Bermuda-based holding company.
    [edit] Monster Mini Golf

    In 2006 Monster Cable brought suit against Monster Mini Golf, a company selling franchise Mini Golf locations throughout the US. After legal salvos and an a lengthy dispute, the owners of Monster Mini Golf launched a grassroots campaign against Monster Cable on the Internet. After receiving more than 200 complaints from the public, Monster Cable dropped the lawsuit and agreed to pay up to $200,000 of Monster Mini Golf’s legal fees.[22] After the settlement Monster Cable CEO Noel Lee and Monster Mini Golf founder Christina Vitagliano filmed a video interview discussing the dispute and resolution.[23]

    As a recording engineer and musician, I recommend that all of my customers avoid Monster Cable. If they aren’t willing to behave, I’m not willing to support them. Monster makes a line of 1/4″ plug guitar cables, and a line of microphone cables. If anyone shows up with a Monster branded cable, I refuse to use it.

  86. The Mad Hatter January 22, 2010 4:24 pm

    Opps. Forgot the link – Monster Cable on Wikipedia.

  87. Mike January 22, 2010 4:47 pm

    The article says Monster cable dropped the suit and paid attorneys fees. Monster lost.

    We cannot get rid of everything based on the actions of a few. i.e. if we got rid of all blogs because one Mad Hatter can’t put together a logical argument.

    The legal system in all industries, not just patents, is set up to try a case in court before a judge or jury. If you’d prefer a king decide your case, that may be more straightforward and require less lawyers. As our system stands, you have a complaint, you file a suit, you argue your case, and in most cases each pays for their own lawyer. Only in frivilous cases does the loser pay for the winners attorneys.

    I agree, if Monster is that stupid and off the hook with their trademark and patent cases, they may need to get new counsel or new management. I am not in recording industry but will investigate and avoid monster cable if that is how they abuse the legal system.

  88. Mike January 22, 2010 4:50 pm

    The statement above came off harsh in review, I apologize for the “logical argument” statement.

    The system worked, monster cable lost and paid out for their frivilous suit. That is how the system works.

  89. The Mad Hatter January 22, 2010 5:13 pm

    Mike,

    I still don’t like them, and refuse to buy their products. If they want to be stupid, and piss off customers, that’s their problem.

    Did you know that Discovery Channel surrendered the TV show name ‘Monster Garage’ to Monster Cable rather than fight – why should they have had to do this? Even the Wall Street Journal wasn’t impressed. And they haven’t stopped, they have attacked Monster Transmission.

    Oh, and they also went after Blue Jeans Cable however they ran into a little problem – Kurt Denke of Blue Jeans Cable is a lawyer, and sent a six page response that is rather funny (PDF Warning!)

    Wayne

  90. EL January 23, 2010 1:29 am

    “There has to be a balance between creator rights and the rest of society.”

    I agree with you, but I disagree in general where the balance should be drawn. In the example of software patents, I have a real concern on how patents of a certain type can effect mathematics and science. My concern is that software patents can get in the way of mathematical and scientific discoveries, and there needs to be a limitation placed upon what is qualified for patent subject material in software so that these discoveries are not harmed. Software gives matheamtics the real chance at becoming an empirical science. I think this may very well become the next big program in mathematics to replace the Hilbert program if the patent system can be fixed.

    If the software patents were forced to be tied into applications, most of the problems would go away. For example, a software system for a rubber machine would not be a problem so long as it is tied to the application. When the calculation itself qualifies as patent material, we run into the problems because it cascades into everything. In a basic nutshell, it leaves the world of invention and enters into the world of mathematics and platonic ideas.

    In general, the largest problem of sorting this out is the manor in which people view inventions. To me, the linear systems of equations patent is not an invention, but to some others, it is a invention needing protection.

  91. Blind Dogma January 23, 2010 1:11 pm

    Mad Hatter,

    That link to the letter was worth two FREE glasses of Kool-Aid.

    Thank you for making my day!

  92. The Mad Hatter January 24, 2010 8:42 am

    Blind Dogma,

    OK, I’ll see your two glasses of Kool-Aid and raise you a six pack of coke in 710ml bottles.

    And yes, the pictures are safe for work. Not that I would expect you to be working on a Sunday, but you never know 🙂

  93. Mike January 25, 2010 12:35 pm

    Monster Cable is behaving poorly. I won’t seek out Monster Cables, and won’t avoid them if needed. But I don’t usually pay that much for overpriced cables anyway. Monster Cable is in my mind wrong, they have their justification, but they’re just not that cool.

    Trademarks although they are a form of IP protection, were not at issue previously. If you rail against all IP you clearly think that my definition of copying is OK, that everything should be free and that would be great if we could all pursue our dreams without having to earn a check. IF I could just write on a blog and play all day, no money, no worries, …

    People have to earn money, frivilous lawsuits are not the answer and most patent attorneys/agents draft reasonable patents and get reasonable claims in their patents. There are bad patents, yes; there are bad software programs, yes; there are all kinds of bad things, do we ban everything? If I get a trivial email that wastes my time should I ban all email? I spend more time reading email than anything else, that didn’t happen 20 yrs ago. Unfortunately, there is more innovation in software than anywhere else. This means the next innovations are going to come in software and hardware. You can argue that software doesn’t deserve patents, but you disrespect the work of software engineers implying what they do is simple and not very important. The number of software patents argues against that. Owners would not file for patents if software didn’t earn money, since there are a lot of patents, it must earn a lot of money.

    Perhaps you can review and contribute to wikipatent (if it’s still around). Index it so that any examiner can find relevant art against each and every element of a software claim. It’s important to get all of the elements and make sure it’s greater than 1 year before the patent filing date. I’d be glad to help you learn to bust patents [of course don’t let that other newsletter guy hear that, he’ll say I copied his newsletter].

  94. Mike January 25, 2010 1:51 pm

    Mad Hatter – the letter was great. I’ll take some Kool-Aid(tm) too!

    EL – I haven’t done the patent search, but I’m pretty sure patents aren’t stopping research into using mathematics instead of the Hilbert program (http://en.wikipedia.org/wiki/Hilbert_program).

    The equation itself has never qualified as patent material. It must always be “by the hand of man,” requiring some action at some point. An equation on a piece of paper is free to use. Yes some convert an equation to software, that alone is not enough for patent protection. Putting the equation in a series “input, equation, output,” would still have to meet the rules for patentability. Someone may have a good example, but I think “Input, equation, output” would be the minimum for patentability and most issued patents have much more than that.

    The patent to a linear system of equations had other limitations, thus was more than just equations. You have to do each and every step in the claim to infringe the patent.

    If it’s that easy to get a bad patent, shouldn’t we all go into the Troll business, get a patent to “IF/THEN,” “LOOPS,” and/or “LOOPS with IF/THEN” statements and take the software world by storm. There’s such a low bar, anyone can get in. Let’s become GABAZILLIONAIRES(tm).

  95. EMR system believer January 6, 2011 5:37 pm

    Mike is right, you have to follow each and every step to infringe on the patent. I just am not surprised at all by the patents growth of GM global being up 68%. I honestly thought it would be a bit more. I wonder what type of effect this is going to have on the medical field. Especially with EMR systems.