Eating Our Seed Corn for Job Creation

Sometimes the problems facing our nation truly are difficult to solve. Reducing the country’s out-of-control budget deficit and fixing our broken public schools systems, for example, each took decades to grow into serious threats to America’s future. And each requires more political vision and national unity to resolve than seem to exist right now.

But other problems are not that difficult to solve, if only our leaders would choose to use some common sense. Take job creation, which is supposed to be the Number 1 policy objective in America right now. The mechanics of job creation are hardly a mystery, after all. We know, for example, that all net new job growth in America comes from startup businesses, not Big Business (see research by the Census Bureau and the Kauffman Foundation).   And we also know that the vast majority of these startups need patents to get the funding from investors they need to start hiring people so they can develop their innovative new products and medical treatments for the public (see the Berkeley Patent Survey of Entrepreneurs).

That’s why I call the patent office, one of the least-known agencies of the federal government, “the biggest job creator you never heard of.” When the patent office is working as it should, entrepreneurs can get the patents and the funding they need to create jobs—as many as 10 jobs per issued patent. When it’s not working, as is the case today, job creation stalls out, like a car without gas.

Everywhere I go, I meet entrepreneurs whose ventures either failed or are slowly dying on the vine because of the outrageous delays they suffered in getting patents. Who would invest the huge sums needed to develop a new medical treatment, for example, without at least the promise of exclusivity and a return on their investment that a patent provides? But because of delays stretching up to seven or more years in getting a patent, these startups lost crucial funding opportunities—or in some cases, even went bankrupt—as a result of the backlog of 1.2 million applications now throttling America’s overburdened and underfunded “innovation agency.”

The backlog is no accident. Over the last 10 years, Democratic and Republican congresses alike have diverted $1 billion in fees earned by the patent office to other uses, such as the census. Bear in mind that the patent office is the only fully self-supporting arm of the federal government, and taxpayers pay not one single dime for its upkeep. Yet it sometimes seems as if elected officials see the patent office not as the nation’s most crucial facilitator of private sector job creation but almost like a petty cash drawer for otherwise unfunded projects.

The result?  Here’s how patent office director David Kappos described the cost to America of the growing backlog and the financial enfeeblement of his agency.

“Hundreds of thousands of groundbreaking innovations are sitting on the shelf, literally waiting to be examined,” Kappos told attendees at a biotechnology conference two years ago. “[This results in] jobs not being created, life-saving drugs not going to the marketplace, companies not being funded, businesses not being formed.”

How many jobs are not being created because of the patent backlog?

“Millions,” said Kappos. “Millions of jobs.”

In my own analysis co-authored for the New York Times last year with Paul Michel, the newly-retired Chief Judge of the U.S. Court of Appeals for the Federal Circuit (the main court for patent appeals), we found that simply clearing the backlog and properly funding the patent office would create as many as 2.25 million jobs over the next three years.

About a year ago, however, it seemed as if Washington had finally begun to grasp the cost to this nation of our chronic weakening of the patent office. The media began to write about the backlog and its cost in American jobs. USPTO Director Kappos went before Congress and the American people to make a compelling case for revitalizing the patent office. And with the support of Secretary of Commerce Gary Locke and the President, Congress last summer did in fact restore some portion of diverted funds to the agency. Most encouraging of all, perhaps, calls were issued from both sides of the aisle to finally end the shameful practice of patent office fee diversion—which, let’s be honest, is akin to a farmer eating his own seed corn.

Then H.R. 1473—the Full-Year Continuing Appropriations Act, 2011—was passed last month to fund the federal government for the rest of fiscal year 2011. H.R. 1473 authorizes a budget for the USPTO that is $100 million less than the fees it expects to collect from applicants during the remainder of the year. But given the slowly-improving economy, the fees the USPTO collects from patent applicants is likely to be even greater than forecast. Therefore, so will the amount diverted by Congress to other uses—up to $150 million, by some estimates.

As a result, the patent office has been forced into a new spiral of retrenchment. Following the passage of this appropriations bill, the agency announced that it was instituting a hiring freeze, cutting overtime, reducing the training of examiners, eliminating investments in badly-needed new search and examination technologies, and indefinitely postponing the opening of satellite regional offices designed to raise patent quality and improve application review.

As if all this wasn’t bad enough, the patent office also announced that it would now have to eliminate the Track One expedited patent examination program open to startups and other small entities. Known as Fast Track, this would have enabled small firms, for a modest fee, to speed up the examination of their patent applications.

The demise of Fast Track can only weaken startup job creators even further and speed the domination of large corporations over the patent landscape in the U.S. Ten years ago, startups and independent inventors earned 35 percent of patents issued to U.S. firms. Today, they receive only 28 percent of patents going to U.S. firms. The death of Fast Track therefore puts one more roadblock in the path of startup innovators.

Congress has in the past shown its willingness to sustain the Founding Fathers’ vision of a democratized intellectual property system that granted patents only to the “first and true inventor” rather than a corporate entity. After the patent office burned down in 1836 and destroyed the nation’s entire repository of new technology, Congress authorized the creation of regional patent offices in up to 20 major cities to help stimulate new invention among ordinary citizens.  At other times as well—such as the first patent law’s stipulation that ordinary citizens applying for patents by mail could do so postage free, to the more recent introduction of reduced fees for startups, universities, and other small entities—Congress has acted to promote the inventive activity of entrepreneurs and small business, the source of all breakthrough innovation.

This time Congress did not appear to be as concerned with the implications of their action for small startups. In the opinion of many entrepreneurs, the so-called “patent reform” bill pending in Congress—which is now being driven by the lobbying efforts of corporate technology giants—will dramatically undermine the interests of startups even further. They say the carrot offered in the bill’s promise to end fee diversion is hardly enough to make up for the bill’s unprecedented weakening of startups’ ability to obtain and enforce their patent rights.

This is what is so frustrating about the paralysis of job creation in America. Our elected leaders openly acknowledge that small startup businesses are the one and only source of net new job growth in the U.S. There is no dispute about this, nor are there any ideological differences about the virtues of entrepreneurialism or the urgent need to create millions of new jobs.

So the solution ought to be simple: put the rancorous fight over “patent reform” aside, and instead restore the patent office funding that everyone agrees is needed to kick-start job creation in America again.

The Author

Henry R. Nothhaft

Henry R. Nothhaft

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 35 Comments comments.

  1. EG May 5, 2011 5:02 pm

    “The backlog is no accident. Over the last 10 years, Democratic and Republican congresses alike have diverted $1 billion in fees earned by the patent office to other uses, such as the census. Bear in mind that the patent office is the only fully self-supporting arm of the federal government, and taxpayers pay not one single dime for its upkeep. Yet it sometimes seems as if elected officials see the patent office not as the nation’s most crucial facilitator of private sector job creation but almost like a petty cash drawer for otherwise unfunded projects.”

    Henry,

    Absolutely spot on. I was in practice in 1992 when this nonsense started, and just about went ballistic then. I call fee diversion “theft” because those user fees collected aren’t being used for what the user paid for.

  2. Blind Dogma May 5, 2011 5:04 pm

    Gene,

    I think that you are asking for too much utility for our mutual Kool-Aid swigging friend to handle.

    Do you think it funny that for all of Bobby’s bluster, there are NO examples of an advanced society that does not have a patent system? If you believe his take on Jefferson, not only would there be examples in the roughly two hundred years since that time, but the world, so enamored withthe success of such examples, would have beaten down the door to copy such systems.

    Alas, we only have Bobby and his castles built on (kitty litter) sand.

  3. Gene Quinn May 5, 2011 6:45 pm

    BD-

    That would be because there are NO examples of an advanced society without a patent system (which I know you know but which I am driving home for those naysayers).

    For the life of me I don’t understand why people would want to pursue a strategy that has never proven successful. Why not pick a play from the playbook of plays that gained yardage? Would you knowingly pick a play that has only ever lost yardage? Yet that is what the naysayers would have us do.

    Cheers.

    -Gene

  4. Bobby May 6, 2011 10:29 am

    BD,
    Switzerland actually went a long time without patents, but eventually caved into pressure from other countries. Switzerland was an advanced and innovative society without a patent system during a time when other nations had patents. Being an advanced society without patents today is tough because of international pressure, such as the requirements of TRIPS, as well as more direct pressure on IP policy from countries like the US, further evidence of which has recently surfaced. Just so I’m clear, the difficulty is not in fostering progress absent patents, but rather, that not having patents or even just having weaker laws or enforcement makes you likely to have trade sanctions and the like used against you if you don’t. That’s a particularly troubling element about IP, since pressuring other countries to change their laws undermines the sovereignty of the affected nations.

  5. Ron Hilton May 6, 2011 12:04 pm

    There are some great soundbites in this article that could be used in our pro-patent grassroots effort:

    “Stop using the US patent office as the nation’s ‘petty cash drawer’.”

    “Stop skimming US patent office user fees – we can’t have job growth if we’re ‘eating our seed corn’.”

    We can’t out-lobby the big corporations. We need to engage the public.

  6. New Here May 6, 2011 8:19 pm

    Re: #5

    “We can’t out-lobby the big corporations. We need to engage the public.”

    That is an idea that must be done with some care when talking to those members of the public that have lost their homes because of their unemployment. Unemployment that when patents are mentioned will make little if any difference when they consider the unemployment that continues at a rate of 9% today.

    I am happy to read that someone wishes to inform the public and bring them into the loop of what is going on from the patent perspective that will bring balance in future considerations of change in the law.

  7. Blind Dogma May 6, 2011 8:34 pm

    New Here,

    Congratulations on making a statement that was put together with care and is thus cogent.

    Unemployment that when patents are mentioned will make little if any difference

    No then, I understand what you said and can comment back with thoughtfullness and due care myself:

    You have no clue what patents do, or can do, or the whole discussion about where jobs come from , do you?

    Perhaps the lack of care in most of your posts was a purposeful disguise for the lack of understanding.

  8. Hank Nothhaft May 6, 2011 8:35 pm

    We must engage the public in order to explain the virtuous cycle of innovation, intellectual proprety rights, patents and job creation.
    If the public understood that we could create a significant number of jobs by just allowing the patent office to retain the fees that they collect for work that will be performed for the fee payers in the future, in my opinion a significant percentage of the public would advocate killing fee diversion as a matter of common sense and good economic policyt.

  9. New Here May 6, 2011 9:14 pm

    @BD

    Congratulations on making a statement that is a misunderstanding of what I said. My comment isn’t about my understanding of what they do, or can do. My comment is about reactions by the public that have lost much do to the high unemployment. Unemployment that is now 9%, that their reactions aren’t going to be positive towards patents when most of the public is in the dark about patents. Right ?

    If you wish to ignore the public reaction when knocking on their doors talking about patents, does seem counter productive to the grass roots objective wanting to engage the public. Calling the public stupid isn’t going to win you any friends when their reaction doesn’t hug and kiss the ideals of patents. To ignore the public reaction is one way for sure that they will not give a rats-end about them no matter how well you make the argument for them.

    Comment #5 has a worthwhile approach to take that with time and care when talking to the public, listening to their reactions and more important taking those reactions as information about what the public really does or doesn’t know about patents to care about what they do.

  10. Blind Dogma May 7, 2011 9:24 am

    New Here,

    And congratulations to you for misunderstanding my criticism of your post. Yes, my post was about what you understand, or more properly, what you misunderstand.

    As Hank reiterates at post 8, the discussion with the American people centers around just why it is important to discuss patents with the American people – in the context of creating jobs for those very unemployed American people.

    Your comment about the unemployed, specifically “when patents are mentioned will make little if any difference” is simply off the mark. The discussion that Hank suggests is to change the current seemingly indiffernce, to incite the American general populace so that those Americans will reach out to their chosen leaders in Washington and tell them to stop stealing the dollars that inventors pay and moving those dollars to other projects. There simply is no basis for your comment of “If you wish to ignore the public reaction when knocking on their doors talking about patents – No one is ignoring anything. Your now added “listening to their reaction” is inherent inthe call for talking. Now if Hank had used the word “preaching”, then you might have had a case for your comment.

    You seem to have a real problem understanding the basics of human interaction when it comes to dialouge. You are seeing things that are not there and your criticism, being unfounded, indicates your lack of understanding. Hence my comment about your “what patents do, or can do, or the whole discussion about where jobs come from

    Before you reply, take some time to actually think what my words mean. I realize that I have spoken in plain English and that may be difficult for you, but I do not know your native tongue.

  11. New Here May 7, 2011 3:08 pm

    @BD

    Patents aren’t the foundation you believe they are, and people (the public) will not be buying the idea that they are, when so many jobs across the employment board have been lost. Many of those unemployed as I have already mentioned, have lost homes and a good deal more. Keep in mind a current 9% unemployment rate doesn’t help your claims or arguments about what it is patents do, not when talking about patents creating jobs. Whatever the the interaction of this “grass roots” thingy is, regardless of how humans communicate the grass roots message, people without jobs that vote and pay taxes too aren’t going to buy the message about patents connection to jobs that are not here !

    As for my opinions and how they are written in my comments, they are not dependent upon any measure-up to your wisdom about any topic that comes up. Regardless of what you think, people are allowed to think and believe what they want. And their opinions though you can’t understand for whatever reasons, doesn’t change people’s right to have a say about what impacts their lives. Sorry if you don’t agree, it doesn’t matter.

  12. New here May 7, 2011 3:21 pm

    TYPO: RE: #11

    “people without jobs that vote and pay taxes too aren’t going to buy”

    Should be:

    “people without jobs that vote and have paid taxes aren’t going to buy ”

    My bad using cut & paste.

  13. New Here May 7, 2011 3:36 pm

    Want to wish everyone this Mother’s Day, a safe and happy time spending it with family that matters most of all.

  14. Hank Nothhaft May 7, 2011 7:35 pm

    My view of taxes and the the Patent Office. Congress is siphoning off money paid to the patent office to do work for patent filers. By diverting this money for uses other than the Patent Office, Congress is imposing an “innovation” tax on inventors.

    No tax dollars are used to support the Patent Office. By transferring this money, Congress is directly responsible for making the Patent Office fall behind on the work they have contracted to complete.

    This is in contrast to almost, if not every, Patent Office in Europe, Japan, Korea, Taiwan, China and Canada.

    As far as Patents being a key element in job creation, there has been significant research done to bolster this argument. I have published some of this research in other articles that I have written and that I am sure you can find if so inclined via Google. I also outline my thoughts and research on this in “Great Again” a book I authored with David Kline (just published by Harvard Business Press).

    I have been President of 6 high tech companies over 35 year period that created 6,000 jobs. Patents played an increasingly important role in these companies particularly starting in the mid 1980’s.

  15. Blind Dogma May 7, 2011 7:51 pm

    Hank,

    I appreciate your constant reminders to New Here, but I seriously think that he has some insurmountable issues with the English language.

    By the way, Thank You (for the companies and the jobs – while I am not one of those that you directly helped, your efforts are in no small part the reason why this is the greatest country on the planet – and I say that with no slight to any other country).

  16. New Here May 7, 2011 9:48 pm

    @Hank Nothhaft

    Mr Nothhaft In my comment #11 I make a point just from the perspective of people’s reactions to their unemployment, and I can tell you, they aren’t buying the idea about patents as a foundation for jobs. Not when their job loss that spans across the job spectrum with most all of those once employed by Corps and Companies holding patents that span much technology and business in the U.S.

    U.S. lawmakers are not just listening to these people’s reactions, but reacting to the stats on business closures and the reduction of personnel positions by others over the past two years. Listening to all the stats of startups in the U.S., reacting to that many more that will never chance going into business because of the present business landscape. And patents sadly are part. The lawmakers are fully aware of the cost to those dealing with patents, in business and in litigation that such costs is costing the U.S. important jobs that are lost before they are created.

  17. New Here May 7, 2011 10:18 pm

    @Hank Nothhaft

    Mr. Nothhaft,

    I mean no disrespect to you or your accomplishments over the years. My first comment #6 on this was I agreed with the worthwhile idea to engage the public, though with some considerations to reactions by the public.

  18. Just visiting May 8, 2011 7:05 pm

    “Switzerland actually went a long time without patents, but eventually caved into pressure from other countries.”

    Because the Swiss were stealing inventions from other countries, which didn’t like it. The Swiss aren’t known for caving in to international pressure, so it is remarkable that the Swiss actually did.

    Actually, protection for intellectual property was granted in certain instances in Switzerlandas as far back as the 1500s.

    Of course, I never expect intellectual honestly from Bobby.

  19. Bobby May 8, 2011 7:50 pm

    “Because the Swiss were stealing inventions from other countries, which didn’t like it. ”
    It wasn’t stealing, and it wasn’t the business of those other countries. Switzerland’s laws are Switzerland’s business. That Germany and other countries’ laws put them at a competitive disadvantage to Switzerland is the fault of the aforementioned countries, not Switzerland.

    “Actually, protection for intellectual property was granted in certain instances in Switzerlandas as far back as the 1500s.

    Of course, I never expect intellectual honestly from Bobby.”
    Do you care to further elaborate? “protection for intellectual property” is rather vague, and doesn’t necessarily include patents, and “in certain instances” seems to suggest that they were a rare occurrence instead of a general one, and unless they had some kind of real frequency for a large part of 19th century Switzerland, it’s not particularly relevant to the example, and doesn’t undermine my statement of Switzerland having ‘a long time without patents.’ Having patents, then not having them for a long time is still not having them for a long time.

  20. Ron Hilton May 9, 2011 10:00 am

    I am fairly active in grassroots politics and I haven’t seen any anti-patent sentiment. On the contrary, the public seems to support the idea of rewarding “good old American ingenuity” and the rags-to-riches, garage-based start-up opportunities that this country cultivates. I hear more anti-patent rhetoric from the corporate leaders trying to protect their turf from those innovative start-ups. It’s quite true that unemployment is a bigger issue, and patent rights are not something most people think about every day, but when the connection between the two is brought to their attention, they get it. We just need to bring it to their attention. Which takes time and money and organized effort.

  21. New Here May 9, 2011 1:17 pm

    @Ron Hilton

    “patent rights are not something most people think about every day,”

    True, and my first comment #6 I agreed with the idea of an effort, to engage the public. I believe you’ve pointed to a clear starting point for such an effort to engage the public, bringing it to their attention and having it, as having it is , an important step to have a message well received.

    The task to grab the public’s attention is complex, when the public’s understanding is limited and reactions to patents, already are mixed with just difference of opinion on what is important. With many not getting it about patents, even when they are aware of that they do exist. As well all the public’s attention on what cost of products and services they use everyday will be. These opinions and personal considerations are what drive the general public’s thinking keeping them occupied, and things as important as patents, are a distant second if at all. True.

    The reactions I have talked about are going to come from those, from lost jobs that hearing any message that patents create jobs, the same jobs they came from, is going to be a hard sell to make. Facts make little difference to those that don’t care about a value upon something that they see, does nothing for them standing in the unemployment line. After losses as many of those that make up the now 9% unemployment rate, the message will have to include results that the limited understanding of many that the message will not reach, can see for themselves.

    Thanks.

  22. patent enforcement May 9, 2011 2:26 pm

    It’s utterly shameful that the patent office has had to suspend implementation of the Track One program. The initiative could go far to increase much-needed revenue for the woefully-underfunded agency, bite into its crushing backlog, help innovators get their inventions to market, and, as a result, reduce U.S. unemployment. And now that rumors predict the death of yet another patent reform bill, it looks like USPTO staff will have to go back to the drawing board in finding sufficient revenue to operate properly. What a disgrace.
    http://www.generalpatent.com/media/videos/general-patent-gets-results-its-clients

  23. Just visiting May 11, 2011 8:48 am

    Again – Bobby, your intellectual dishonesty/ignorance(??) shines through.

    First, let’s realize that Switzerland, as we know it, didn’t exist until the mid 1800s. Before then, the cantons that make up Switzerland were part of a loose confederation. Thus, from the time the “Nation” of Switzerland came into being, it only took 40 years for them to institute a national patent system.

    However, even in the early 1800s, certain of the cantons were enacting patent legislation. The short-lived Helvetic Republic of the very early 1800s had patent laws. In fact, within a year after modern Switzerland came into being, a draft patent law was being circulated. One of the reasons why it was rejected was that their Constitution did not expressly permit such a law, and there was a question as to whether it was possible to, in fact, pass such a law.

    Frankly, I’m not sure why you like to hang your hat on Switzerland besides the fact that it was the last “modern” countries to have patent system. When you actually RESEARCH the issue, it is pretty easy to see why. Unlike many of the other countries in Europe, Switzerland didn’t not have a strong central government. As such, it is harder to enact nationwide patent laws in such a situation. Additionally, when you review the history of Swiss patent law, it isn’t like the Swiss were saying to the world “we don’t have a patent system, and we don’t think we need one.” On the contrary, as I alluded to above, there were significant efforts to create intellectual property protection within Switzerland many, many years before 1888. Also, in 1880, Switzerland was represented at the Paris Convention. As such, to any outsider at the time, it was not a question of whether the Swiss wanted patent laws but a question of when those patent laws would be enacted.

    Hey, I know you have little to work with to support your side on this issue, but try to not misrepresent what was going on in Switzerland.

  24. Blind Dogma May 11, 2011 10:28 am

    Bobby’s examples are replete with such errors.

    This happens when one is in a rush to see only that which supports one’s dogma, and is blind to all else.

    And jus to make Bobby really happy, when you chug the Kool-Aid you tend to splash a lot on your face, and the stains are easy for everyone to see.

  25. Bobby May 11, 2011 10:37 am

    JV,
    Switzerland happens to be a fairly good natural experiment, regardless of the reasons why they held out on patents. They also happened to have weaker patents than the US and UK, particularly regarding chemicals, for a great deal of time longer, still providing some useful data. 19th century Switzerland makes a much better control group when compared to similar European countries at the time than North Korea to the US in today’s world, a comparison I seem to recall being made around here.

    “Additionally, when you review the history of Swiss patent law, it isn’t like the Swiss were saying to the world “we don’t have a patent system, and we don’t think we need one.”
    The failed 1866 referendum on the matter appears to say something like that. It could actually be interpreted more strongly as “we don’t think we even need the option for one.”

  26. Blind Dogma May 11, 2011 11:41 am

    It could actually be interpreted

    Bump.

    <>

  27. Just visiting May 11, 2011 7:08 pm

    “The failed 1866 referendum on the matter appears to say something like that.”
    One failed referendum in a country not even 20 years old with a strong history of anti-central authority.?

    If that is the best you can work with, go with it, but I doubt anybody is going to find that one data point particularly persuading 150 years later.

    FYI … they had weaker patents on chemicals because the Swiss chemical companies were stealing from the Germans.

    Funny that, whenever you find someone advocating for weaker intellectual property rights it is because they want take someone else’s intellectual property without repercussion. This is what it all boils down to … the “new generation” dislikes copyrights because it interferes with their ability to get free music/video/games. Patents come along for the ride because the same group always wants to be able take other people’s software.

    Just another version of “you got want I want, so I’m going to change the law so I can get it.” It doesn’t get much simpler than that.

  28. Bobby May 11, 2011 8:08 pm

    “One failed referendum in a country not even 20 years old with a strong history of anti-central authority.?

    If that is the best you can work with, go with it, but I doubt anybody is going to find that one data point particularly persuading 150 years later.”
    I think there were actually two or three failed referendums, and it pretty conclusively counters your claim that Swiss weren’t saying they didn’t need a patent system. The referendum was on whether or not they needed the ability to have a patent system, and they went with ‘not’ that time.

    “FYI … they had weaker patents on chemicals because the Swiss chemical companies were stealing from the Germans.”
    They weren’t stealing, but they were copying. Differentiating between the two is needed for a civil conversation. What they were doing was completely in line with Swiss law, and Swiss law is the business of Switzerland, not Germany. They were also inventing, and doing quite well at it.

    “Funny that, whenever you find someone advocating for weaker intellectual property rights it is because they want take someone else’s intellectual property without repercussion. This is what it all boils down to … the “new generation” dislikes copyrights because it interferes with their ability to get free music/video/games. Patents come along for the ride because the same group always wants to be able take other people’s software.

    Just another version of “you got want I want, so I’m going to change the law so I can get it.” It doesn’t get much simpler than that.”
    Funny that, when you lack a proper argument, you demonize opponents with gross generalizations. As far as law changing goes, it’s been mostly the established copyright holders that have been asking for changes to the law.

  29. Blind Dogma May 12, 2011 11:57 am

    They weren’t stealing, but they were copying. Differentiating between the two is needed for a civil conversation

    No, that is called being pedantic. Either adjective paints the same conclusion: the activity is wrong. Falling back as you do to a “let’s be civil” about which wrong is simply disingenuous.

    The point is, rather simply, laike farm poliy and econmics in general, your arguments lack substance (need I point out that you still have not addressed the second portion of my question?).

    Kitty litter sands as foundation for your castle, with you still inviting people in to your saying to and fro castle tower. It should not surprise you that you are not able to coax any sane person into your castle, no matter how much Kool AId you have bought.

  30. Bobby May 12, 2011 1:15 pm

    “No, that is called being pedantic. Either adjective paints the same conclusion: the activity is wrong. ”
    No, ‘copying’ does not paint the conclusion that the activity is wrong. In terms of Swiss law, it’s no more wrong than me producing Aspirin or putting on a Shakespeare. If copying is wrong, then printing presses are evil devices that must be destroyed. Even if we do accept the lunacy that copying is inherently wrong, it doesn’t mean it’s the same wrong as stealing. Murder and theft are both wrong, but they are not the same wrong, so it is not wise to call shoplifters ‘murderers.’ Would you cite someone who corrected that error as pedantic?

    “(need I point out that you still have not addressed the second portion of my question?).”
    Do you care to restate exactly what you mean? I don’t recall anything I haven’t addressed.

  31. Blind Dogma May 12, 2011 2:49 pm

    Please leave the strawman in the closet:

    Even if we do accept the lunacy that copying is inherently wrong

    No one said that copying is inherently wrong. Where do you come up with this?

    If I have an island kingdom and make it the law that I can kidnap anybody in the world, bring them to my island and kill them, have I done anything wrong by engaging in those actions?

    Your ridiculous attempt at painting the Swiss “copying” as completely blameless is as ridiculous as my island example.

    And that is even besides the point – closer to the point is that I called you pedantic because you are evading the actual issue by trying to draw a distinction that really does not matter. Even your strawman of murder/theft is crying that you brought that out because it is a ridiculous escalation between the actions involved. The least you could do was use an example wherein the actions were much mcuh closer together in meaning (like civil actions and unpublished patent applications – just kidding). But then, you would probalby (I hope) stop typing the example because you would realize how foolish you were.

    At least one can hope.

  32. Just visiting May 12, 2011 6:35 pm

    “I think there were actually two or three failed referendums, and it pretty conclusively counters your claim that Swiss weren’t saying they didn’t need a patent system.”
    It doesn’t conclusively prove much. I don’t have to name names, but in a certain country with which I am extremely familiar, there were plenty of laws that were approved (or rejected) in a manner that we today would find reprehensible. In fact, that country went to war with itself pretty much the same time your referendum was being held. Should I use the “anti” stance at that time as a data point to say their stand should be looked upon favorably today?

    Of course, you gloss over the fact that portions of Switzerland did have intellectual property laws during this time (some for centurities) and the Swiss eventually did get around to a patent system less than 40 years after their modern central government came into being after being hampered by their original constitution, which did not include a provision to permit such a thing.

    Until you can show some analysis as to why the referendum failed and whether those reasons were an indictment against the patent system as a whole or for some other reason, you cannot “conclusively” prove anything. Regardless, I don’t expect such an analysis from you since the one thing I can expect from are statements that are light on facts and heavy on speculation.

  33. Bobby May 12, 2011 7:00 pm

    BD,
    “No one said that copying is inherently wrong. Where do you come up with this?”
    I said ‘they were copying.’ If ‘they were copying’ alone conveys that what they did was wrong, then it would suggest that the act of copying is inherently wrong in a manner similar to theft being inherently wrong, something which is not an unpopular sentiment. If you meant that this particular instance was wrong, that is precisely the point of debate. Stealing is against both German and Swiss laws, but what Switzerland did was not against German nor Swiss laws.

    “If I have an island kingdom and make it the law that I can kidnap anybody in the world, bring them to my island and kill them, have I done anything wrong by engaging in those actions?”
    Bringing them to your island would involve taking them from the country they come from, something that is illegal in most countries. The Swiss using processes covered by German patents is not against German or Swiss law. In your example, if you only kidnap and kill your own citizens, it’s not a concern of other nations, at least outside of perhaps advising your citizens to not go to your country. To bring things back into the realm of IP law, let’s take legal protections of databases. Certain legal protections exist in at least parts of the EU for databases, but they are considered outside of the realm of congressional powers in the US Constitution, and would require a constitution amendment to pass a law on the matter. Thus, American companies can copy European databases freely, and can likely acquire database rights within Europe. This strongly mirrors the situation of Swiss and Germany. Do you think European countries would be just in threatening trade sanctions to stop us from “stealing” their databases, or do you think that our laws in that subject are none of their business?

    “Your ridiculous attempt at painting the Swiss “copying” as completely blameless is as ridiculous as my island example.”
    In regards to Germany, their patent system is an agreement of disclosure to the German people in exchange for legal exclusion of direct competition within Germany for a limited time. The Swiss people at that time did not take part of that agreement in any fashion, so they are not bound to its terms. Where do you find anything that is wrong?

  34. Bobby May 12, 2011 7:18 pm

    JV,
    “It doesn’t conclusively prove much. I don’t have to name names, but in a certain country with which I am extremely familiar, there were plenty of laws that were approved (or rejected) in a manner that we today would find reprehensible. In fact, that country went to war with itself pretty much the same time your referendum was being held. Should I use the “anti” stance at that time as a data point to say their stand should be looked upon favorably today?”
    You are moving the goalposts when they had already been moved. You said “it isn’t like the Swiss were saying to the world “we don’t have a patent system, and we don’t think we need one.”” At the time, they were asked if they needed a patent system, and the Swiss people said no. Favorability today is not a concern.

    “Of course, you gloss over the fact that portions of Switzerland did have intellectual property laws during this time (some for centurities) and the Swiss eventually did get around to a patent system less than 40 years after their modern central government came into being after being hampered by their original constitution, which did not include a provision to permit such a thing.”
    You made some coherent points for once, although you have some big inconsistencies, and my point wasn’t on how much the Swiss hated patents, but rather that they had success without them. You mention that portions of Switzerland had IP laws, which were likely very ineffective due to the other portions not having them, but that doesn’t count as modern Switzerland to you. Now, I’ll admit that they did get a patent system. However, the period of time is not small in the context of ‘modern Switzerland’.’ Furthermore, the reality is that the reason why Switzerland didn’t have patents didn’t matter. Even if it was something the Swiss people BEGGED for, but couldn’t because of something they couldn’t change, it still provided data to compare patents to not having patents. What matters is the output of Switzerland during that time relative to other countries. Switzerland at that time was doing quite well in quite a few industries.

    “Until you can show some analysis as to why the referendum failed and whether those reasons were an indictment against the patent system as a whole or for some other reason, you cannot “conclusively” prove anything”
    Can you name another plausible reason why they would oppose it? The referendum failed a popular vote.

  35. Anon May 13, 2011 8:32 am

    The article here by Hank Nothhaft focuses on the beginning end of value creation.

    Patent Docs has a nice article on the continuing focus of value, and can be found here: http://www.patentdocs.org/2011/05/ocean-tomo-study-highlights-importance-of-patents-and-inventors.html#tp

    At the end of the day, those who naysay the value of patents and patent systems cannot refute the reality of this world. There simply is no credibility there.