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The Problem with Software Patents? Uninformed Critics!


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: April 5, 2011 @ 3:50 pm
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The problem with software patents isn’t that they are granted on obvious innovations, but rather that those who spend so much time complaining about them are just about completely clueless, at least with respect to patent law. It borders on the comical to observe some of the apoplectic rants against software patents, which almost universally conclusively prove that the person writing (or ranting) has not read past the title of the software patent in question. That is, of course, assuming they have even looked at the patent and are not merely mimicking what they have read from some other equally clueless and irresponsible critic.

For example, recently an article intended to point out the absurdity of software patents - Start-ups in the maze of software patents – ranted about how there is “even a patent for automatic e-mail answers…” At lease a link to the allegedly ridiculous patent was provided, so I figured I would check it out and see if the Patent Office did actually grant a patent on an automatic e-mail answering system. Guess what I found? What a shock it was to discover the gross exaggeration and oversimplification of the innovation in question. Did this guy even read the patent? Did he even understand that the claims are what defines the exclusive right?

The patent in question is U.S. Patent No. 6,411,947, titled “Automatic message interpretation and routing system.” This patent was filed on April 2, 1998 and claimed priority from a provisional patent application filed on April 4, 1997. In other words, in computer terms it is from many generations ago in terms of technology. Furthermore, in the ordinary case (i.e., almost all cases) the patent applicant never has to declare when the invention was made, so there is no way to know when the earliest date of conception was here, which would be the date that one would need to get behind with prior art that would be useful to demonstrate the inventor was not the first inventor. Similarly, with evidence of a prior user, sale or publication the critical date for the statutory bar would be April 3, 1996. So realistically to demonstrate the claims awarded are invalid one would have to come up with prior art from on or before April 3, 1996. Of course, no of this was mentioned by the ranting article, in all likelihood because none of this was known or appreciated if known.

If you look at the first claim, which is the broadest issued in this patent, it covers:

1. A method for automatically processing a non-interactive electronic message using a computer, comprising the steps of:

(a) receiving the electronic message from a source;

(b) interpreting the electronic message using a rule base and case base knowledge engine; and

(c) classifying the electronic message as at least one of (i) being able to be responded to automatically; and (ii) requiring assistance from a human operator.

Does the characterization of “a patent for automatic e-mail answers” seem to fit after reading the claim? Of course not. There is at a minimum the requirement of some kind of machine intelligence to sift e-mail messages and determine which ones can be responded to without a human operator and which ones require a human operator. A cool and quite useful invention really.

Unfortunately for the patent owner, claim 1 and a majority of the 66 claims obtained were invalidated during reexamination. However, some 22 claims survived reexamination and 25 additional claims were added to the patent as it exited from reexamination recently, on March 22, 2011 (see last page of ’947 patent pdf).  More specifically, the patentability of claims 9, 10, 14, 30-37, 50-51, 57-61 and 63-66 was confirmed.  In fact, the patentability of these claims was not confirmed once, but was confirmed twice by the U.S. Patent and Trademark Office.  In legal circles that means to a 99.9% certainty that those claims are patentable and will remain patentable henceforth.

So you can poke all the fun at this patent that you want, but at least two things are clear relative to the ’947 patent: (1) the system worked to invalidate claims that were not patentable; and (2) there is still a patented innovation here that employs computer intelligence to shift through e-mails, allowing some to be responded without human intervention and triaging others and putting them in a queue for human response. So the innovation is hardly just automated e-mail responses, and despite this patent being on the the Electronic Frontier Foundation (EFF) hit-list, the patent still exists with many valid claims, many of which remain unchanged from the date it issued.

The trouble I have is that to tell the story of the ’947 patent takes time and understanding to get it right. Truthfully, I have only scratched the surface of the story here, but have quite clearly demonstrated that the off-hand characterization of this patent as being ridiculous because it covers automated e-mail response is wholly irresponsible. It is untrue, and such demagoguery does nothing to forward the position of those who dislike software patents because those who are familiar with the law understand it to be the nonsensical, hysterical rants of those who don’t understand what they are talking about and who obviously don’t care enough to educate themselves. Simply stated, they never let facts get in the way of forming an obviously incorrect opinion.

Software patents cover the computer implementation of a process.  To listen to those who are programmers talk they think that every single computer implemented process is not new or is obvious.  That is, obviously, not correct and a terrible simplification of both patent law and computers, but I suspect pretty much everyone who is a computer user, save those anti-patent computer programmers, already inherently knows what I just said to be true.

If computer implemented processes are not new and are obvious then why can’t they ever work smoothly? Seriously, if computer implemented processes are not worthy of patent protection then isn’t that an admission from the anti-patent computer programmers that what they are paid to do is trivial and merely ministerial?  Of course it is, yet they almost to a person treat their craft as some kind of black magic that mere mortals couldn’t ever hope to comprehend, and their projects routinely crash, burn, have bugs, need patches and simply can’t be made to work on some platforms or under certain conditions.

Either computer programmers are perpetrating one of the better scams of all time, they haven’t a clue what they are doing, or it really is harder than they admit whenever they talk about patents.  So which do you think it is?  Regardless, the reality that we all know to be true undercuts their protestations about the patent system and the patentability of software or computer implemented processes.

Truthfully, what makes software and other computer implemented processes patentable is the human element.  Patentability and the fact that innovations are new and are nonobvious are confirmed by the very fact that things don’t go as they are predicted, that there is not cross platform operability, and that there are truly challenged users who deviate from the norm and find new and ever more creative ways to accidentally crash whole systems.

Software and computer implemented process don’t protect the code, anyone can write code, some of which works and much of which has the added feature of unintended bugs.  The code is not the magic, the code is the translation of the innovation into terms capable of being processed by a machine.  The innovation is the overall system from a computer engineering perspective that takes into consideration anything that can and will go wrong and addresses those possible occurrences, whether likely or not.  That is why you don’t need code to receive a patent on software or a computer implemented process.  What you need is a design document that would direct those who would be coding so that they are not interjecting any creativity.  You want them to just code and not get creative, the vision is the inventors and the coders are the means to the end.

Listening to those who code complain about patents is nearly hysterical.  They still haven’t figured out that by and large they are not innovators, but rather merely translators.  Perhaps that is why they so frequently think that whatever they could have come up with themselves is hardly worthy of being patented.  Maybe they are correct, but that doesn’t mean that an appropriately engineered system isn’t patentable, it just means that those who code are not nearly as likely to come up with such a system in the first place because they rarely, if ever, seem to approach a project as an engineer would.  Rather, they jump right in and start coding.  In the engineering world that is a recipe for disaster, and probably explains why so much software that we pay so much money for today is hardly worthy of being called a beta, much less a finished product.

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Posted in: Anti-patent Nonsense, Computers, Gene Quinn, IP News, IPWatchdog.com Articles, Patents, Reissue & Reexamination, Software

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

42 comments
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  1. Finally, someone who understands software patents! I invite you to read my analysis at

    http://www.tomgallagher.biz/tagesq/newsletters_files/Issue%20Nine.pdf

    This is the way I see many software patents which can be embodied in hardware without a single line of code.

    Regards,

    Tom

  2. @Gene

    I go back with software more then 36 years, that is before all the patenting of software started,
    along with much of software that didn’t exist yet !
    As Bill Gates of Microsoft once said, 16th of May 1991.

    “If people had understood how patents would be granted when most of today’s ideas were invented,
    and had taken out patents, the industry would be at a complete standstill today.”

    Read the whole story::
    http://www.nytimes.com/2007/06/09/opinion/09lee.html

    FYI: Flying blind = doing without knowing

    Don’t forget that those making all the noise over software patents are doing so with a full understanding of patent law. Because, understand that respectable patent Attorneys of the Bar in the US, are on both sides of the software patent issues. Courts don’t allow noise makers, so if one is to make a case about software patents, they are going to need a patent Attorney, and do I need mention the fact, all those in those nasty anti-patent cases have patent Attorneys. And nothing outside of patent law is going inside any Court of law in the US, or should I believe that Judges do allow otherwise ? I don’t !

    Law makers in Washington are not doing a thing without Gov patent Attorneys as guides, not if a respect of law is the rule. Why would anyone believe that law makers are somehow flying blind making a mockery of the laws they write. Oh please.

    Say what you please, but grouping together people as those of the open source camp as you have, that you know nothing about, with a broad brush say they are flying blind ignores many facts. Many people, as those mentioned above are as much a part of the history of the creation and development of software, that claims take credit for today. Patents don’t change the history. Many of those people come from early computers, as pdp, and earlier, seeing the developments as well gained a knowledge that has been passed down through the years that many have and continue to benefit because of.

    Thanks.

  3. @Tom

    Nice simple analogy.

    To be more accurate, you should have preceded the lines of code with:

    Fetch and Store A in memory location1;
    Fetch and Store B in memory location2;
    Fetch and Store C in memory location3;

    A computer program implemented in a classic Von Neuman computing machine is basically a time-multiplexed rendition of a pipelined hardware processor.

    Each stage of the pipeline fetches data from registers that were loaded by a previous stage.
    The computer merely re-arranges its common hardware resources (e.g. its ALU) in the time duration between each storage of previous results and each next fetch of the stored results.

    Thanks for the link to your page.

  4. Good post Gene.

    Also law makers need to understand that software patents is about software not hardware. Its about the logic not about programming or hardware. Many software patents are confusing to read because the teachings focus too much on the hardware and not enough on defining/clarifying the essential features of the software.

    Many of the disclosures on hardware are simple/obvious arrangements of servers/computers that don’t produce novel results anyway. Misconceptions about software inventions appear to have fostered an environment where inventors are being encouraged to state the obvious……

  5. The way you write, there aren’t serious problems with the patent system in regards to software patents. Taking that attitude is quite foolish. There will always be a need to better separate the wheat from the chaff, and if you aren’t looking for doing that, you aren’t caring for the maintenance of the patent system. If the beneficiaries of the system don’t take care to keep it a well tuned system, it can’t possibly be a net benefit for society.

    With the barrier to entry being so low, prior art is a nightmare, and it will only continue to become a worse situation without huge changes since more and more people will be capable of innovating, many of whom may not consider what they do to be innovative, or even if they do, not worth the money to them to get a patent. Another big problem is that software has very quick turnaround compared to many other fields, but still has the same patent terms. You mention that the ’947 patent is from ‘many generations ago in terms of technology.’ That a patent from many generations ago is still a threat to those operating in the field is troubling.

    “Software and computer implemented process don’t protect the code, anyone can write code, some of which works and much of which has the added feature of unintended bugs.”
    The code is what you actually need, and the difference between code which works properly and code which has unintended bugs would suggest an importance that coding is not merely translating.

    “The code is not the magic, the code is the translation of the innovation into terms capable of being processed by a machine. The innovation is the overall system from a computer engineering perspective that takes into consideration anything that can and will go wrong and addresses those possible occurrences, whether likely or not.”
    I was unaware that a patent in any field needs to consider all possible occurrences. I understand that considering these occurrences is helpful in practice and may even be helpful in getting a patent, but if that’s not required for software patents, and that’s where the innovation is, then innovation is not required for software patents. That doesn’t mean a software patent can’t contain innovation, but not needing it is a far more serious problem than some journalists who don’t completely understand the legal intricacies of reading a patent.

    “That is why you don’t need code to receive a patent on software or a computer implemented process. What you need is a design document that would direct those who would be coding so that they are not interjecting any creativity. You want them to just code and not get creative, the vision is the inventors and the coders are the means to the end.”
    Given my two prior statements, it might be that the real creativity is in the implementation, not the general idea, and there is certainly some creativity in all but the most mundane code (like textbook implementation of “hello world” in a specific language), just as there is some creativity in all but the most mundane sentences, at least when not quoting someone.

    “In legal circles that means to a 99.9% certainty that those claims are patentable and will remain patentable henceforth.”
    That doesn’t hold true. Perhaps it’s 99.9% certainty given the current evidence, but that doesn’t mean new evidence won’t be found later that invalidates those claims.

  6. I have not read through all the posts this morning, but I needed to stop at a point in New Here’s post, where New Here stated:

    Don’t forget that those making all the noise over software patents are doing so with a full understanding of patent law.

    New Here, this is so completely untrue as to be downright laughable. What makes you believe this utter lie?

  7. @BD

    Not a complete quote:

    “Don’t forget that those making all the noise over software patents are doing so with a full understanding of patent law. Because, understand that respectable patent Attorneys of the Bar in the US, are on both sides of the software patent issues. ”

    What is so completely downright laughable, is that someone believes that someone would make a case with that case headed to Court, over software patents would do so without a correct legal guide. The cases mentioned are not just those on blogs or forums, but as Gene mentioned the EFF, where those cases were in Courts of law. Again downright laughable is that someone believes when so many people call a professional when they need something done, and for a very simple reason — because not everyone knows everything — dumb huh ? knowing everything that I agree has its benefits but those professionals wouldn’t make a living. But not knowing something doesn’t mean that an individual or other is out in the cold. If so, I have to believe that people would be calling those in law much less because they wouldn’t know how.
    NO lie.

    Thanks.

  8. Gene, one caviat. The two present patent reexaminations do not, and can not, test for required 112 adequacy, to see if the patent really teaches at least one example of how to make and use what was being claimed. [Reexaminations can only compare patent or pubication prior art to the original claims.] Quite a few software-related patents were issued before the PTO more recently began to more rigorously require actual, specific, algorithms or software. So there are issued patents out there [unlike this one] [some being sued on], with little more in their specifications than Jules Verne style “wish lists” for future real inventions by someone else, with empty “black boxes”, and/or flow charts with nothing more in them than the broad claim elements. Yet it is nearly impossible for most juries to understand that such patents are not valid either, and it is very expensive to go all the way through a jury trial and up to the Federal Circuit to get that issue decided.

  9. Hew Here,

    Your reply post is incomprehensible. You appear to at once both call for legal counsel and diminish what legal counsel can do. I simply do not understand what you are trying to say with your “knowing everything that I agree has its benefits but those professionals wouldn’t make a living. But not knowing something doesn’t mean that an individual or other is out in the cold.,” for example. What are you trying to say?

    Paul F. Morgan,

    The USPTO does not require actual specific algorithms. Are you familiar with the concept of PHOSITA and what actually is required (or not) in light of PHOSITA?

  10. Bobby-

    You say: “The way you write, there aren’t serious problems with the patent system in regards to software patents.”

    How can you possibly justify this statement? My pointing out that those who are critics of software patents don’t understand the law, grossly exaggerate and oversimplify is me saying there are not problems with certain issued software patents?

    You say: “I was unaware that a patent in any field needs to consider all possible occurrences.”

    You say this then go on to say “but if that’s not required for software patents…. then innovation is not required for software patents.”

    That is like saying the King would be the Queen if the the King were a woman. Come on Bobby. I explained that patents, including software patents, need to take into consideration anything that can and will go wrong and addresses those possible occurrences. That is what creates a disclosure that with adequate support and a fully articulated invention. It is true for ALL inventions, and is why some patents are such garbage. You get what you pay for though, so when you don’t disclose enough you have a garbage patent, regardless of the technology involved. What is interesting is that the statement I made was 100% correct, you confirmed you were unknowledgeable about it, and then said “well, if that isn’t true then software isn’t an innovation.” The trouble for you, and your argument, is that it is true.

    You see, Bobby, you prove the point of the article. You are unfamiliar with even basic patent law concepts but that doesn’t stop you from coming up with erroneous and uninformed opinion after opinion. Why not take some time to learn about the law and then armed with that knowledge enter the fray?

  11. blue-

    You say: “Many software patents are confusing to read because the teachings focus too much on the hardware and not enough on defining/clarifying the essential features of the software.”

    I couldn’t agree more. That is a relic of judges not understanding software and for too long not wanting to grant protection on software. Truthfully, software has been patentable for many decades. Patent attorneys just describe the hardware, as you point out, rather than the software. The hardware is not the invention, but to get the patent that was what was required. Sad really that the judges and leaders in Congress couldn’t figure this out and once and for all say software is patentable subject matter so get to describing that which makes the thing unique.

    -Gene

  12. New Here-

    You say: “Don’t forget that those making all the noise over software patents are doing so with a full understanding of patent law. Because, understand that respectable patent Attorneys of the Bar in the US, are on both sides of the software patent issues.”

    The article is not about those who have legitimate legal disputes and disagreements, but rather about those who are completely clueless and rather than educate themselves make ridiculously exaggerated claims about what a particular patent covers. And those who make such exaggerated claims most certainly do not know anything about patent law, let alone fully understanding it.

    You say: “Say what you please, but grouping together people as those of the open source camp as you have, that you know nothing about, with a broad brush say they are flying blind ignores many facts.”

    Believe what you want, but assuming I know nothing about open source or those involved in the movement is naive in the extreme.

    -Gene

  13. @BD

    What are you trying to say?
    Lets back up, you first start with a slice of something i said back on #2, it was not a complete quote because the later that followed what you did quote, makes what I said clear — and was left out. This is just what I talked about on #7 — at the very top of that post.

    All the talk about everyone whom, happens to have something to say about patents, is somehow doing so without knowing the law. (flying blind). Not true. Those that do not know the law can and do, retain the correct legal guide. No one is taking patent to task without someone that knows that law. Please.

    Never made any call and didn’t diminish what legal counsel can do. It seems that if someone has anything to say about patents, they better know the law. Not true, no such requirement exist. People have been able to speak about what they see, with the right to legal counsel as guide to bring about change. Returning to my post in question, if someone knows everything ( all areas of law) in order to have a say, would reduce the need for professionals –(legal) being unable to make a living. If I know the law, what do I need an attorney for when I most likely have gone to law school and could pass the bar on a few tries and save myself the cost paying others.

  14. Re the above comment, I did not ever say that actual specific algorithms are required in all cases,
    Also, the Fed. Cir. has repeatedly noted that the POSITA test for prior art in 103 is not the same as, and does not require as much detail, as applicants 112 enablement requirement.

    Also check out the new PTO Supplimental 112 Guidelines effective 2/19/11 for example, and the more recent Fed. Cir. cases cited, and you will see that it does appear to be the case for at least software being broadly claimed in “means function” for without software or other enablement. That illustrates the point I was making, that the PTO seems to be trying to tighten up on 112 support requirements in this technology for initial examinations, even though the PTO can only raise that issue in reexaminations for newly-added claim language. [Not that every examiners will do either.]

  15. “How can you possibly justify this statement? My pointing out that those who are critics of software patents don’t understand the law, grossly exaggerate and oversimplify is me saying there are not problems with certain issued software patents? ”
    The title of this article is THE problem with software patents. That suggests that it’s the only problem, or is at least the biggest problem. Now, if you had titled the article ‘a problem’ or ‘my problem’, that would be appropriate, but you didn’t do so, and you started the article with THE.

    “Come on Bobby. I explained that patents, including software patents, need to take into consideration anything that can and will go wrong and addresses those possible occurrences. That is what creates a disclosure that with adequate support and a fully articulated invention.”
    But they don’t address all possible occurrences. They may address some things that go wrong, but some problems may not even be known until a working model has been tried and thoroughly tested, and AFAIK, there isn’t a minimum bar for a number or percentage of possibilities to consider other than one functional method to complete a task,. Some occurrences aren’t even going to be conceivable for years down the roads, which is part of why some degree of leniency is granted to patentees for the doctrine of equivalents. In a strict sense, addressing all occurrences isn’t something that is humanly possible, at least outside of a “if anything happens that is not directly addressed, you are probably out of luck” cop-out

    If there is a section of US patent law that states that you have to have something equivalent to an extensive troubleshooting guide, please enlighten me. However, I see a value in just providing an explanation of how-to do something, so if such language actually exists, I would probably be in favor of removing it, save perhaps a technicality that an impossible burden would make all patents invalid, but I’d rather not ‘win’ that way.

  16. Bobby-

    You say: “The title of this article is THE problem with software patents. That suggests that it’s the only problem, or is at least the biggest problem.”

    Two things. First, you need to get a life my friend and take this a little less seriously and stop reading into things. Second, you once again prove my point unwittingly. Indeed, the biggest problem with software patents is that those who hate them prevent a serious, adult discussion about them because they run around like chicken little. The only difference is chicken little based his hysteria in reality, those who are the vocal critics of software patents simply make things up and they either lie or don’t care enough about the truth to get it correct.

    Look, if you are going to comment about patents then at least educate yourself. The critics of software patents revel in their ignorance and refuse to participate in a meaningful debate. Sure, there are problems, but pointing to the problems of a decade ago and not realizing that things have changed is ridiculous. Also opining that something is obviously not patentable without explaining why is the type of asinine “I know better than you” type of ranting that doesn’t forward the debate.

    The software patent critics are the biggest problem because they think they are superior and know better when in fact they are clueless and refuse to educate themselves and try and be a part of the solution. You are either a part of the problem or a part of the solution, and no one who observes the software patent debate can come to the legitimate or intellectually honest conclusion other than that the critics are not a part of the solution due to their unwarranted and misleading hysteria.

    -Gene

  17. “Indeed, the biggest problem with software patents is that those who hate them prevent a serious, adult discussion about them because they run around like chicken little.”
    So, you ARE saying that the biggest problem is that opponents of software patents, who you claim nobody informed is listening to anyway, are the biggest problem regarding software patents (presumably for society, not your own personal interests)? You claim me as an example, but I am not running around like chicken little yelling about how the end is nigh (at least not about patents, anyway). There are opponents and proponents of software patents and patents in general that make such proposals, and to my recollection, you’ve painted darker pictures than I. If I had to guess, the worst patents could do is slow innovation a bit, but there are many policies that have that kind of effect, and in some fields, it may not even be the worst problem, even with poor stewardship of patents.

    “You are either a part of the problem or a part of the solution,”
    Dealing in absolutes like this is indicative of poor reasoning (and being a Sith, but that’s neither here nor there), and you seem to be spouting off quite a bit of them. I suppose that in a certain sense, a party would have to be either a net negative effect or a net positive effect, but even you can consider that critics might be innovators to an extent than their contributions outweigh their ramblings, making them fall on the solution side despite being critics (perhaps an occurrence that you didn’t consider? ;) ). LIkewise, I consider that a party that strongly advocates patents in an inappropriate manner might innovate enough to overcome the harm of their words. I am not a fan of patents, and I would probably be pleased if they were to disappear. However, I can consider at the very least the hypothetical situation where they could be of a benefit to society, and as long as we still have a patent system, I think it important to attempt to fine tune the system to have the greatest benefit to society with the lowest social cost.

  18. “Another big problem is that software has very quick turnaround compared to many other fields, but still has the same patent terms. You mention that the ‘947 patent is from ‘many generations ago in terms of technology.’ That a patent from many generations ago is still a threat to those operating in the field is troubling.”

    The notion that software inventions are like “May flies” (here today, gone tomorrow) is a common misconception amongst both patent practitioners and software critics alike. Like most technologies, there inventions that are the building blocks for future inventions and there are inventions that completely replace older technology.

    Few people get upset about the “here today, gone tomorrow” ideas because by the time they are patented, they have already been replaced or about to be replaced. It is the “building block” technology that gets everybody up in arms — i.e., the technology that spans multiple generations.

    That being said, if the technology is the building block for other technologies, then why shouldn’t it be entitled to the same term as other patents?

    Also, Bill Gates is wrong when he allegedly stated ““If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” First, in the 20 years since that statement (a time during which software-implemented inventions have been patentable), there has been an incredible (mind blowing) growth in software. You can do things today that Bill never dreamed of doing 20 years ago. Second, Bill (at the time) didn’t realize smart patent holders don’t prevent others from practicing their inventions. Instead, smart patent holders either license/cross-license their patents. This is extremely common in many industries (e.g., consumer electronics, semiconductors, etc.) where there are multiple (sometimes hundreds or even thousands of) patents covering the relevant technology.

    Gene is very right in that most software patent critics don’t know their a@@ from their elbow when it comes to knowing what is the scope of a particular patent. I read slashdot .org as it gives me some good insights into the latest technology, but the posts they have on patents are all laughable.

  19. “That being said, if the technology is the building block for other technologies, then why shouldn’t it be entitled to the same term as other patents?”
    Because the same period of protection in a faster moving field has a higher social cost. For society, a 20 year patent on software might be equivalent to a 50 year patent in the chemical industry. It’s not difficult to see how a 50 year old patent could cause stagnation relative to a 20 year old patent.

    “Also, Bill Gates is wrong when he allegedly stated ““If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” First, in the 20 years since that statement (a time during which software-implemented inventions have been patentable), there has been an incredible (mind blowing) growth in software. ”
    You are misinterpreting what he said. A resilient industry was built by that point, and what he contended was that a non-resilient industry would not have made progress. Microsoft was already big enough to be engaging into some at least legally questionable behavior.

    “Second, Bill (at the time) didn’t realize smart patent holders don’t prevent others from practicing their inventions. Instead, smart patent holders either license/cross-license their patents. This is extremely common in many industries (e.g., consumer electronics, semiconductors, etc.) where there are multiple (sometimes hundreds or even thousands of) patents covering the relevant technology.”
    Ignoring the harm that not-so-smart patent holders can do, the big dogs certainly tend to cross-license with each other a bit, but that ends up largely neutralizing the patent system for them. MS, Apple, Adobe, Oracle, Nokia can all work in a relatively free market similar to what it’d be like WITHOUT patents, but small competitors may have a steep entry fee. Even in the cases where both parties have to pay the same rate, the large companies are more capable of spending that money.

    MPEG-LA, which is involved in codec licensing, has all but said that it’s impossible to build a modern video codec without the patents its members hold, and has caught a good bit of anti-trust flak. Likewise, most any peripheral that interacts with Windows has to use certain patented Microsoft technology for compatibility’s sake. That’s another huge concern with software patent that doesn’t seem to be addressed by the legal system. Cross-compatibility is essential in many parts of software, often to an extent that being technically superior doesn’t matter without compatibility, which gives an even bigger advantage to the large, established entities that aren’t as innovative per $.

  20. “Because the same period of protection in a faster moving field has a higher social cost.”
    Let’s keep ignoring the empirical evidence that the software fields have gone through a huge growth period the last 20 years – despite patents. You are going to find it very hard to convince people that the software industry has been held back the last 20-30 years because of patents.

    “You are misinterpreting what he said. A resilient industry was built by that point, and what he contended was that a non-resilient industry would not have made progress. Microsoft was already big enough to be engaging into some at least legally questionable behavior.”
    I read nothing about “resilient” versus “non-resilient” in his comments. You have to love how people make sh1t up. Also, what do you mean by resilient versus non-resilient? These terms don’t have well-recognized meaning.

    What is funny is that you cite from a 5 year-old article that discusses the fight between Vonage and Verizon over certain aspects of VOIP technology. The article states:
    “So if Verizon prevails on appeal, it will probably be able to drive Vonage out of business. Consumers will suffer from fewer choices and higher prices, and future competitors will be reluctant to enter markets dominated by patents.”

    Well, Vonage did lose, but they are still in business. Moreover, I can fall out of bed today and trip over dozens of low-cost VOIP providers out there. As is the norm, the “dire predictions” of the software haters didn’t pan out because they divorce themselves from reality. As I stated in my first post, intelligent patent holders don’t prevent other companies from practicing their inventions – they try to monetize the (i.e., license) patents.

    “MS, Apple, Adobe, Oracle, Nokia can all work in a relatively free market similar to what it’d be like WITHOUT patents”
    Really???? Microsoft gets sued all the time by small-time inventors for patent infringement. Try working with facts next time.

    “Likewise, most any peripheral that interacts with Windows has to use certain patented Microsoft technology for compatibility’s sake.”
    No sh1t Sherlock. You don’t think that was done on purpose? Your “cross-compatibility” argument is another way of saying “I want to be able to leverage someone else’s technology for my own personal gain.” Well, perhaps the owner of that technology does not want you free-riding on their work.

    Regardless, if you happen to invent a great widget that works only with a MSFT product, get your own patent(s) on it. If it is worthwhile, sell it to the masses and you’ll eventually get the attention of MSFT. If your software is good (and just as importantly, your patents are solid), MSFT might throw a 7 or 8 digit sum your way. That is how the smart software coders operate.

    The d umb software coders post on message boards – complaining about how the system is unfair, and how all the big boys won’t let them play in the sandbox. Let me clue you in on something, whine all you want, but this system isn’t changing. If you want change, you better have the masses on your side or more very well-funded entities on your side than the other side. You have neither, so the impetus for change just isn’t there.

  21. “Let’s keep ignoring the empirical evidence that the software fields have gone through a huge growth period the last 20 years – despite patents. You are going to find it very hard to convince people that the software industry has been held back the last 20-30 years because of patents.”
    That’s not a good methodology. That lots of progress has happened doesn’t mean that patents aren’t a hindrance, it just means that they aren’t enough of a hindrance to completely stunt growth (which in many estimations tends to be logarithmic or exponential). The proper benchmark is how much progress we would have without patents.

    “I read nothing about “resilient” versus “non-resilient” in his comments. You have to love how people make sh1t up. Also, what do you mean by resilient versus non-resilient? These terms don’t have well-recognized meaning.”
    He was talking about ‘when most of today’s ideas were invented,’ which in context would refer to the infancy of the industry. It should be pretty clear how an established industry is more resilient than one in its infancy.

    “Really???? Microsoft gets sued all the time by small-time inventors for patent infringement. Try working with facts next time.”
    Again, I said ‘relatively.’ They get sued, but even the biggest lawsuits don’t threaten to put them out of business, and when the patents aren’t held by NPEs, the big dogs probably have patents to countersue with, which is likely eventually leading to some degree of cross-licensing that isolates them somewhat from the costs of the patent system.

    “No sh1t Sherlock. You don’t think that was done on purpose? Your “cross-compatibility” argument is another way of saying “I want to be able to leverage someone else’s technology for my own personal gain.”
    Perhaps we shouldn’t encourage rent-seeking behavior that’s independent of technical merit. What I’m speaking of isn’t about leveraging technology, but avoiding being locked out of a market. In many cases, the reason that compatibility is needed is not because the technology involved is good, but because it is widely used. This ends up giving big companies more leverage over small companies (which tend to not have products that are big enough to force a need for compatibility), while the general consensus is that the small companies are the bigger source of innovation.

  22. Just Visiting,

    You have one small but glaring error in your position.

    You say that there is a lack of impetus for change. That simply is not true. A strong patent right has been under attack for sometime now and the impetus for such change comes both from within and from without. From within, you have some of the current big users of the system, who notwithstanding that use, would love to gut the system because they would rather compete on size and not on inventive concepts. From without you have the academia (and others) who have philosophical issues with property in general.

    What is most sad and most ironic is that the “common level” programmer has become such a lemming to the mantra (the Blind Dogma as it were) to the rallying cry that “Patents are Evil,” that they have lost the capacity to actually apply reason. They lap up the mantra like no tomorrow, and either purposefully ignore the extant legal and philosophical underpinnings of the Patent System, desiring to make things up on the fly and builds castles in the sand (e.g. Bobby), or deign to twist and pervert patent history and philosophy until all semblances of reality have been destroyed (e.g. Lemley, Masnick and Koepsell).

    Be that as it may, I will repeat something that I have been told by none other than Chief Judge Michell: be ardent, be vocal and do not assume that someone else will speak up to challenge the fallacies being put forth in the quest to weaken, rather than strengthen, the patent right.

  23. “You say that there is a lack of impetus for change. That simply is not true.”
    What you call a strong impetus, I call weak — we can agree to disagree.

    “They lap up the mantra like no tomorrow.”
    That is true — again, I frequently read slashdot, and the amount of misinformation (and the readily devouring of that misinformation) is astounding. Many programmers just don’t get is that IP allows them to compete with the big boys.

    Then again, like most things, what we read (and hear) are more often the most militant of voices. It would be like (incorrectly) assuming every conservative thinks like Rush or every liberal thinks like Rev. Sharpton.

  24. Gene, I think my earlier comment is stuck in the filter.

    On the subject of impetus, I think there is quite a bit of growing unrest in the general public. High profile lawsuits are being raised raised involving both patents and copyright, and a lot of it is getting ridiculous. Copyright probably has the higher profile, but the increasing usage of the blanket term ‘IP’ further muddies the already murky public perception. If BD thinks my arguments sound drunken and embarrassing to opponents of software patents and patents in general, it’s nothing compared to things like a lawsuit against Limewire where the plaintiffs are seeking damages up to ‘higher than the world GDP.’

    As for the idea that “IP allows them to compete with the big boys”, that certainly has been the promise, but it seems to be stated quite a bit that one of if not the most important things to have patents for is to be able to negotiate with other patent holder to be able to cross license, something that is only needed because others have patents in the first place.

  25. Bobby,

    Regarding: “I think there is quite a bit of growing unrest in the general public“, you are mistaking the vocal minority’s propaganda with the general public. The so-called “high-profile” lawsuits are not tracked by the general public. Further, if one were to actually track them (and patent lawsuits in general) and the relative facts behind lawsuits (as I have commented on previous threads that the actual rates of lawsuits per active patents is most likely DOWN), you would indeed see that a propaganda battle is underway. You have a persistent lack of ability to separate actuality from the propaganda (drunk on the Kool Aid). Is it any wonder you refuse to acknowledge actual legal principles in our discussions?

    As for copyright lawsuits – a few more of those like Limewire and you will have the Anti-patent-Copyright-is-enough Kool Aid drinkers screaming about the evils of Copyright (such as the audacious length of term).

    Stan,

    How are the Copyright (is evil) Kool-Aid Concoctions coming along? We put a mighty big budget into R&D for that group.

    Just Visiting,

    I think that we would both agree on the weakness of the merits. But soundbytes and propaganda do not have to depend on the merits in order to influence politics (Just look at any of the Koepsell posts). If you really think that an “impetus” is weak, simply witness the bills in both house of Congress (and note who has influenced those bills). Do not confuse “merit” with “impetus.”

    The battle is not always to the strong, the race not always to the swift. The reason why smoke and mirrors are used is because smoke and mirrors sometimes work.

  26. BD,
    I said there is growing unrest in the general public, not that the general public is angry or even concerned. More people are not tracking it than tracking it, but those that are at least aware of it are a fairly large group. The people who are actively concerned about it is not huge, but those that hear about them and get a little agitated is a bigger group.

    As for the lawsuits, you’ve got to keep some different things in mind. Number of patents outpacing number of lawsuits doesn’t mean there isn’t concern with lawsuits, especially in regards to congestion of the court system. Also, the number of suits and the size of awards and settlements are two separate things. When it comes to perception, even far fewer suits with larger awards in court can appear to be worse.

    Also, let’s not forget that ‘IP lawsuits’ is not limited to patent lawsuits, and copyright holders, particular when represented by the RIAA/MPAA and similar groups, have thrown reality to the wind in a fairly high profile manner.

    As for the “Anti-patent-Copyright-is-enough Kool Aid drinkers,” I’m sure a lot of them are not completely happy with the current copyright regime either, but it may be less of a concern since they can at least do what they do without being threatened by copyright.

  27. “That lots of progress has happened doesn’t mean that patents aren’t a hindrance”
    Perhaps they were a driving factor for that progress. Did you ever think of that? Have you ever wondered why every modern nation in the world has a patent system? If patents are so onerous to business, why is that?

    “What I’m speaking of isn’t about leveraging technology, but avoiding being locked out of a market.”
    If Apple creates a market (e.g., via the iPhone), then they should have the capable of locking people out — which they do. If you want to compete, create your own market (see Android). What you don’t see is that competition (and being locked out of certain technologies) HELPS innovation. If all the app makers and all the phone makers and all the networks were capable of using the iPhone, then the iPhone would have been the standard that everybody used. However, since many were locked out of using the iPhone, they created new products. To some, a patent is a roadblock in the road of progress. However, a roadblock is also an incentive to take the road less traveled, from which many new discoveries can be had.

    Without patents, the best copiers/marketers are better positioned to be successful. With patents, the best innovators are better positioned to be successful.

    If you are excessively worried about patents, then you are a copier, not an innovator.

    To answer my question above, it appears that modern nations also value innovation over copying.

  28. “let’s not forget that ‘IP lawsuits’ is not limited to patent lawsuits, and copyright holders, particular when represented by the RIAA/MPAA and similar groups, have thrown reality to the wind in a fairly high profile manner.”

    I agree that some of these lawsuits seem silly. However, I’m sure the intent of these lawsuits is to make a point — that many people have forgotten, which is stealing is still illegal.

  29. “Perhaps they were a driving factor for that progress. Did you ever think of that? Have you ever wondered why every modern nation in the world has a patent system? If patents are so onerous to business, why is that”
    We have a certain rate of progress, and we have patents. Without further analysis, we can’t make any conclusions other than patents weren’t destructive enough to reverse the direction of progress.

    As for why patents are so prevalent in modern nations, one factor is that foreign patent and copyright are often shoehorned into trade policy. For example, to be part of the WTO, you have to have at least 20 years of patent protection.

    “If Apple creates a market (e.g., via the iPhone), then they should have the capable of locking people out — which they do.”
    You say that, but you have not provided a why? Locking competition out of a market is generally considered a negative thing by most standards. The reason for the patent is to entice innovation or help compensate for the the externalities associated with the costs of innovation. That’s why an innovation that is obvious should not be protected, even if it’s very useful. The costs of said innovation are low, and thus need no external motivation.

    “If all the app makers and all the phone makers and all the networks were capable of using the iPhone, then the iPhone would have been the standard that everybody used. However, since many were locked out of using the iPhone, they created new products.”
    Not necessarily. If Apple sought no legal protection for the iPhone and even gave complete specifications so anybody could manufacture an iPhone, it doesn’t guarantee that the iPhone would become the standard.

    “To some, a patent is a roadblock in the road of progress. However, a roadblock is also an incentive to take the road less traveled, from which many new discoveries can be had.”
    This is a horrid retcon of the logic behind the patent system. The purpose of the patent system is to get the new inventions to the public. The fact that sometimes having to develop a workaround results in a better product is incidental, and in many cases, an alternative that is significantly better, even if for just certain niches, would be justified without the workaround. Also, you and others seem to forget that sometimes a roadblock is just a roadblock, and means we waste time reinventing a square wheel.

    “What you don’t see is that competition (and being locked out of certain technologies) HELPS innovation.”
    I see that competition helps innovation, but I realize that patents result in the exclusion of competition. The word you are looking for is not competition, but diversity. Diversity has its pros and cons, and I’ve seen no indication that market forces result in inadequate levels of diversity, or that the kind of diversity patents bring is a particularly fruitful kind of diversity. I am for competition, which is why I am not fond of government backed legal monopolies.

    “If you are excessively worried about patents, then you are a copier, not an innovator.”
    I must say again, absolutes are indicative of poor reasoning. Also, practically if not all innovators are copiers as well, so it’s a false dichotomy.

    “Without patents, the best copiers/marketers are better positioned to be successful. With patents, the best innovators are better positioned to be successful.”
    That is the idea on paper, but whether that plays out in reality is a different issue, and not bothering to stamp out abuse makes the likelihood of that actually being the case much lower.

    “I agree that some of these lawsuits seem silly. However, I’m sure the intent of these lawsuits is to make a point — that many people have forgotten, which is stealing is still illegal.”
    That point seems to be lost on the fact that these are copyright infringement suits, not theft lawsuits, and that copyright infringement is not theft.

  30. The reason for the patent is to entice innovation or help compensate for the the externalities associated with the costs of innovation. That’s why an innovation that is obvious should not be protected, even if it’s very useful. The costs of said innovation are low, and thus need no external motivation.

    Bobby, your legal understanding continues to be ignroant and just plain wrong.

  31. “You say that, but you have not provided a why?”
    Creation = ownership. Not a hard concept.

    “Locking competition out of a market is generally considered a negative thing by most standards.”
    It all depends upon what you define your “market” to be. Apple doesn’t lock people out of the market of purchasing music/apps/etc. They just restrict people who used the channel created by Apple. Just because someone builds a new mall near my house, it doesn’t mean that I cannot set up my shop there without paying the owners of the mall. Again, simple concept.

    “The reason for the patent is to entice innovation or help compensate for the the externalities associated with the costs of innovation. That’s why an innovation that is obvious should not be protected, even if it’s very useful. The costs of said innovation are low, and thus need no external motivation.”
    Ditto to the comment immediately above. Before you opine on the law, you need to understand it first.

    “it doesn’t guarantee that the iPhone would become the standard”
    There are no guarantees in life — but just like water flows downhill and electricity takes the path of least resistance, the market would like to take the path of least resistance and settled on a defacto standard of an iPhone/iPod.

    “The purpose of the patent system is to get the new inventions to the public.”
    That is a very simplistic way of looking at it. The patent system is to promote innovation — which can be done many different ways. Either by incentivizing public disclosure, incentivizing inventors, etc. I understand my analogy is a little complex, so I’ll excuse you for not understanding it.

    “I must say again, absolutes are indicative of poor reasoning. Also, practically if not all innovators are copiers as well, so it’s a false dichotomy.”
    I stand by my statement. Granted everybody stands on the shoulders of the ones that came before, but if all you are doing is copying — with no innovation, then neither I nor the patent system has any sympathy for you.

    “That is the idea on paper, but whether that plays out in reality is a different issue.”
    You only need to look at China to see how that works. Back in the day, when merely creating a new product was enough to ensure exclusivity for a period of time, then a patent system would not have been as important. Today, however, is a different story. You introduce a new product at a trade show on Monday and on Friday, your new product is being loaded onto a container vessel from China — however, that product was being shipped your competitor to sell. No protection for innovation = the best copiers win.

    “these are copyright infringement suits, not theft lawsuits”
    Copyright infringement is just another form of theft, so I don’t recognize your distinction.

    This is your problem — you don’t seem to recognize that people can have ownership of the things they create. You want to take us back to communism, where the “commune” or “commons” owns everthing, and thus, everybody can profit for the other’s work. Works nice on paper, but I thought we disposed of that idea as to how to distribute property a couple of decades ago as being unworkable.

    Sure, some people don’t mind giving away their work for free, but most of us do mind. Since you hang around the crowd that likes to give away stuff for free, you don’t see that.

    However, I can go Main Street America ask them “do you think it would be fair in the situation in which you had an idea for a business/product, someone took your idea and made money off of it, and they didn’t pay you a dollar for taking your business/product?” There answer will NOT be “oh … I think it is OK that the person your business/product without paying for it.” Instead, their answer will be “that isn’t right … you should be paid for your business/product.”

  32. “Creation = ownership. Not a hard concept.”
    The logistics of physical objects and abstract ideas are quite different. Also, the US copyright and patent systems are pragmatic, not moral. The reason to grant a legal monopoly is the belief that having such a policy benefits the public, not because authors and inventors deserve it. Quit muddying the waters with that French garbage that even they have largely dumped.

    “It all depends upon what you define your “market” to be. Apple doesn’t lock people out of the market of purchasing music/apps/etc. They just restrict people who used the channel created by Apple. Just because someone builds a new mall near my house, it doesn’t mean that I cannot set up my shop there without paying the owners of the mall. Again, simple concept.”
    I recognize the difference between locking out a broad market and locking out of a specific subset, but it is still locking out. Also, in this case, Apple has sued or cross-licensed with just about everyone in the smartphone market, so they could almost certainly lock out a newcomer that doesn’t have a massive portfolio.

    “Ditto to the comment immediately above. Before you opine on the law, you need to understand it first.”
    Please explain which part you disagree with. You said in your last comment that inventors are incentivized by patents, and obvious inventions aren’t patentable.

    “There are no guarantees in life — but just like water flows downhill and electricity takes the path of least resistance, the market would like to take the path of least resistance and settled on a defacto standard of an iPhone/iPod.”
    It’s a possibility that other parties would have made devices closer to the iPhone, maybe having at least some degree of compatibility, but if there is a significant demand for devices that differ from the iPhone, then something that isn’t the same will have to be made. The only reason why we would only have the iPhone is because the iPhone is so close to what everybody wants that expenditures in researching something else are not worthwhile, in which case, everybody having an iPhone would seem to be ideal.

    “Either by incentivizing public disclosure, incentivizing inventors, etc. I understand my analogy is a little complex, so I’ll excuse you for not understanding it.”
    You aren’t presenting an analogy here (perhaps you left it out), and both of those would ultimately be getting inventions to the public.

    “I stand by my statement. Granted everybody stands on the shoulders of the ones that came before, but if all you are doing is copying — with no innovation, then neither I nor the patent system has any sympathy for you”
    But that’s not true at all. The patent system doesn’t care if you copy something that isn’t patentable or no longer covered by patents. Barring a few exceptions where the patent office has granted extensions, every known invention from the dawn of humanity to 1991 can be freely copied. Also, a concern that an innovator might have is that standing on the shoulders of others that still have protection is blocked as best as possible. The patent system is a practical system, not magic, so pretending that the only reason to have great concern over the power patentees are given is ignoring reality.

    “You only need to look at China to see how that works. Back in the day, when merely creating a new product was enough to ensure exclusivity for a period of time, then a patent system would not have been as important. Today, however, is a different story. You introduce a new product at a trade show on Monday and on Friday, your new product is being loaded onto a container vessel from China — however, that product was being shipped your competitor to sell. No protection for innovation = the best copiers win.”
    My argument was more about patents putting the innovators in a better position. The reality seems to me to be that it puts those capable of gaming the system in a better position (and thus tending to harm actual innovators), and those capable of gaming the system tend to be large, established companies (NPEs are doing things as well, but they are by definition not in competition). LIke I said, a large share of the justification for a small, innovative company getting a patent is that they might be able to make a usable product through cross-licensing with the big dogs. WIthout patents, the startups have access to the entire portfolio, don’t need to spend precious money on getting patents, and don’t need to worry about whether or not their innovations are patentable or not.

    “Copyright infringement is just another form of theft, so I don’t recognize your distinction.”
    The law recognizes that distinction, and it’s not hard to see the difference. The reason you would call infringement theft is because you can’t make an argument against it that would stand on its own. Even if you have to conflate it with something else, it’s far closer to trespassing than theft anyway, but trespassing isn’t big and scary.

    “This is your problem — you don’t seem to recognize that people can have ownership of the things they create. You want to take us back to communism, where the “commune” or “commons” owns everthing, and thus, everybody can profit for the other’s work. Works nice on paper, but I thought we disposed of that idea as to how to distribute property a couple of decades ago as being unworkable.”
    I am speaking of a free as in freedom market without the government interfering by temporarily excluding competition. Communists may indeed like a world without patents as well, but that doesn’t mean it’s not in line with capitalism as well. Again, calling opponents communists is a lack of a real argument, especially since the US patent system is explicitly for a public benefit. Again, if you want to make an error, at least make the best one and call opponents libertarians or anarchists.

  33. Bobby,

    It is absolutely incredible how you can mangle the legal concepts and live in your fantasy world. Your castle is built on the sands of kitty litter, and while used kitty litter does tend to clump, it is still not advisable to use it as a foundation for any structure.

    And while you quibble with “theft,” but never did answer my question of forms of IP that rightly fall under theft (e.g. trade secrets), you proceed to butcher with “The reason to grant a legal monopoly is the belief that having such a policy benefits the public, not because authors and inventors deserve it,” getting “monopoly” completely wrong (as Gene as lectured you on) and once again getting the basis of Quid Pro Quo completely wrong. Ditto “Free Market” which does not, nor ever has meant “Unregulated Market.” You have been corrected on these fallacies before. It is you that continues to ignore reality (because the legal basics are reality, and they do not fit your dogma).

    It is not a matter of “French garbage” – it is a matter of understanding the legal basics. You refuse to do so, so you remain in ignorance, blind to everything but your dogma.

  34. “And while you quibble with “theft,” but never did answer my question of forms of IP that rightly fall under theft (e.g. trade secrets),”
    Exposure of trade secrets is not theft either, although I don’t recall you posing a question to me on the matter. Part of the act of exposing a trade secret may involve theft, but that would be incidental. Are you guys just incapable of seeing anything you don’t like as something other than theft? There are plenty of other illegal and unethical behaviors to choose from, although few have the strong stigma theft has associated with it, and nobody would ever believe that copyright and patent infringement is murder or assault.

    “you proceed to butcher with “The reason to grant a legal monopoly is the belief that having such a policy benefits the public, not because authors and inventors deserve it,” getting “monopoly” completely wrong (as Gene as lectured you on) and once again getting the basis of Quid Pro Quo completely wrong. ”
    Patents are monopolies, specifically legal monopolies. Again, I must state that in an article YOU told me to read written by Giles Rich, who is quite a big fan of patents, he refers to patents as legal monopolies, and he is far from alone in that usage. That’s a technically accurate term to describe patents and copyright. That you and Gene apparently can’t distinguish between legal monopolies and actions that are in violation of antitrust laws is not my problem.

    Now in regards to you claiming I got your precious “Quid Pro Quo” wrong, ask yourself, why should the public take part in any Quid Pro Quo in the first place? Perhaps you seem to be thinking I’m talking about the ‘why’ for a particular patent, but I am speaking of the ‘why’ of having a patent system in the first place. In other words, the purpose of the patent system, which is indeed specified as a public benefit under the US constitution.

    “Ditto “Free Market” which does not, nor ever has meant “Unregulated Market.” ”
    Actually, it has in certain contexts, but that aside, while you might argue that markets with patents can still be considered free markets, you can’t argue that markets without patents are not free markets.

    This isn’t even an argument at the level of whether or not patents and free markets are good and bad. The public education system and federal funding for scientific research are not part of a free market, but are largely regarded as positive things. Likewise, the government granting exclusion from direct competition to patent holders, at least nominally for the purpose of furthering the state of the art, can hardly be seen as part of a free market, even if we conclude it means we have much more progress with such a system.

  35. Bobby,

    You are wrong in so many ways. You insist on running with scissors with your eyes closed – dangerous for all and foolhardy for you.

    “theft” is a prime ingredient of misappropriation of trade secrets – “exposure” is merely a step.

    Patents are not monopolies. Judge Rich uses the term in a special way, and not in relation to the use of the term as you would use it. Your ignorance of the subtleties merely plays to your propensity to only understand those facets that serve your argument. For example, you only need to remember how I pointed out the quotes of Jefferson and your adherence to only those quotes that appear to denigrate patents while ignoring or worse, misinterpreting, those that “promote” the patent system.

    Quid Pro Quo is not my precious view – it is the legally correct and well understood view. Your attempts at bastardizing the meaning has been refuted time and again. It is critical that you actually understand the terms that you attempt to frame your dogma with – your refusal is why the my reference to you building castles on kitty litter is so appropriate.

    Your lack of understanding of “free market” is especially ironic as you lecture others on the topic. Reminds me of your blatant misuse of farm policy, or have you forgotten also that correction of mine concerning yet another fallacy of yours?

    whether or not patents and free markets are good and bad.” – yet again you launch into a philosophical debate, when you have not established the ground of the debate. You again invite into your dream castle of “well if we did not have a patent system, then…”. I do not entertain your invitation. Why would any sane person climb to the tower of a castle built on the foundation of used kitty litter?

  36. ““theft” is a prime ingredient of misappropriation of trade secrets – “exposure” is merely a step.”
    No, it is not theft. A loss of a trade secret might not even involve anything illegal.

    “Patents are not monopolies. Judge Rich uses the term in a special way, and not in relation to the use of the term as you would use it. ”
    No, I’m using it in the same sense he is. I have repeatedly said that I am not speaking of it in the anti-trust sense.

    “Quid Pro Quo is not my precious view – it is the legally correct and well understood view. Your attempts at bastardizing the meaning has been refuted time and again.”
    My complaint is that you can’t look at things at a higher level, and instead spout Quid Pro Quo as if disclosure for a patent is beyond my grasp. The relevant question is why should society bother with any Quid Pro Quo in the first place?

    “For example, you only need to remember how I pointed out the quotes of Jefferson and your adherence to only those quotes that appear to denigrate patents while ignoring or worse, misinterpreting, those that “promote” the patent system.”
    No, I understand that he was a fan of patents at one point, but he was a fan because he thought that they practically worked if you kept them properly under control. Analysis in hindsight would appear to suggest he was wrong on that point, but he was correct in understanding that patent system was intended for a public benefit.

    “Your lack of understanding of “free market” is especially ironic as you lecture others on the topic. Reminds me of your blatant misuse of farm policy, or have you forgotten also that correction of mine concerning yet another fallacy of yours?”
    My statement on farm policies was more incomplete than incorrect, and it was just an example to make a point. Meanwhile, you have explicitly stated that patents are a constitutional right, which is a blatant lie directly related to the US patent system.

    “yet again you launch into a philosophical debate, when you have not established the ground of the debate. ”
    I’m not launching a philosophical debate. I’m saying that the free market point isn’t even a valid battle because it has nothing to do with whether or not having patents is a good thing or not. I repeat, whether or not patents are parts of a free market has nothing to do with whether or not they are good or bad. JV wanted to call opponents of the patent system communists because he lacks a valid argument, and name calling is so much easier, so I pointed out that opposing patents can be advocacy for a free market, which is often regarded as the opposite of communism.

  37. A loss of a trade secret might not even involve anything illegal.

    Strawman. No one is saying that “a loss” might not even involve anything illegal. The point is that when an illegal theft of a trade secret does occur, “theft” is indeed the proper term to use, which does in fact deflate your argument.

    Please try not to be so disengenuous.

    No, I’m using it in the same sense he is.

    No, you are not. You do not understand the sense he is using that term. You do not understand the legal nature of that term. You may think you understand, but you only grasp those aspects that fit your dogma.

    It is a fatal flaw of yours.

    My complaint is that you can’t look at things at a higher level

    Your complaint is unfounded. You cannot think that your so-called higher level has any validity when to get their you have built your structure on false ideas. I keep pointing this out to you and you choose to keep ignoring the basics. Your so-called “relevant question” is not relevant. The founding fathers explicitly included the notion of patents in the very fabric of the Constitution. Yet another point you refuse to acknowledge.

    Analysis in hindsight would appear
    No, what you are attempting to do, in hindsight, is to choose only those things that appeal to your dogma. You do not get to revise history so.

    My statement on farm policies was more incomplete than incorrect, and it was just an example to make a point.

    Seriously? Your statement was incorrect in part because it was “incomplete” and you attempted to make a point that could not be made with your choice of an example. Do you not get that you cannot make arguments like that and expect any type of credibility?

    you have explicitly stated that patents are a constitutional right

    I believe that I have corrected you on this more than once, as you again try to have me engage in an argument that I have not engaged in. Stop the duplicity.

    I’m not launching a philosophical debate.

    Yes, you are.

    If you cannot see how you jump into your dogma, than you are even more blind about your position and about how to argue for your position. You simply do not have the facts right to even engage your argument. That is why I keep pointing out that you need to redo your foundation.

  38. And further, llike the farm policy – your idea of “free market” is off point, incomplete AND incorrect.

  39. “The point is that when an illegal theft of a trade secret does occur, “theft” is indeed the proper term to use, which does in fact deflate your argument.”
    Well, under what circumstances do you define theft of a trade secret? I would contend that the secret is ‘stolen’ only when one party no longer knows the secret and another party gains that secret. For example, the HDCP master key was exposed, but was not stolen. If someone took the lone handwritten copy of the KFC secret recipe, that would likely mean the secret itself was stolen. If that handwritten copy was destroyed by another party, then the knowledge is lost but not accurately described as stolen.

    “No, you are not. You do not understand the sense he is using that term. You do not understand the legal nature of that term. You may think you understand, but you only grasp those aspects that fit your dogma.”
    Legal monopolies are not horribly complicated, at least in how they work. The law prevents others from doing what the monopoly covers without the permission of the holder of the monopoly. Some specific details may vary depending upon the nature of the legal monopoly, but that’s the gist of the term. How can there even be any dogma about that? It’s like you are just trying to shoehorn your catchphrases into the debate no matter how poorly they fit.

    “Your complaint is unfounded. You cannot think that your so-called higher level has any validity when to get their you have built your structure on false ideas.”
    The ‘why’ of the patent system IS the structure or the foundation of the patent system upon which the specifics are built. Regardless, I understand at least the broad mechanical way in which the patent system operates if not all the nuances. Inventor discloses new invention, examinations, yada yada, they get a patent.

    “Your so-called “relevant question” is not relevant”
    Why the public should have a patent system isn’t relevant? I disagree. Understanding the purpose of the patent system is very important to evaluating the job its doing.

    “No, what you are attempting to do, in hindsight, is to choose only those things that appeal to your dogma. You do not get to revise history so.”
    Neither do you. I am not stating that Jefferson didn’t think patents worked. I am saying that given the information currently available, it appears that they didn’t. Analysis of the data is a separate issue, however, and we’ve derailed enough as it is.

    “The founding fathers explicitly included the notion of patents in the very fabric of the Constitution. Yet another point you refuse to acknowledge.”
    I openly acknowledge that there is a clause explicitly about patents in the Constitution. However, I also acknowledge that Congress does not have to have a patent system, that patents explicitly have to be of a limited duration and that their purpose is to promote the progress of the useful arts.

    “I believe that I have corrected you on this more than once, as you again try to have me engage in an argument that I have not engaged in. Stop the duplicity.”
    Are you saying that you didn’t say that patents are a natural, constitutional and statutory right, or that you still think you are correct on that matter that patents?

    “And further, llike the farm policy – your idea of “free market” is off point, incomplete AND incorrect.”
    Again, the reason to bring it up is because JV accused me of advocating communism, something I am not doing. If you wish to substitute ‘laissez faire,’ ‘libertarianism,’ or even ‘anarchism’ for ‘free market,’ I will not be horribly offended.

  40. Hey there! Would you mind if I share your blog with my twitter group? There’s a lot of folks that I think would really appreciate your content. Please let me know. Thank you

  41. Robert-

    You can certainly tweet the article. We just don’t allow the reposting or republication of our articles without our express consent.

    Thanks for reading.

    -Gene

  42. [...] The Problem With Software Patents? Uniformed Critics [...]