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Debunking Innovative Copycats and the Patent Monopoly

Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog
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Posted: Sep 3, 2012 @ 4:54 pm
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Many inventors operate under the misunderstanding that getting a patent is like owning Boardwalk and Park Place in the popular board game “Monopoly.” Increasingly, many journalists and patent haters are operating under the same fallacious assumption.  The carelessness with which the patent right is characterized by so many with only the vaguest of knowledge of the patent system leads to truly unfortunate consequences.  Inventors believe that if they obtain a patent the world will back up a money truck to their front door.  Patent haters think that a patent is evil and interferes with innovation.  Both claims are laughably naive.

First, I am an unapologetic defender of the patent system, which is hardly news to anyone who reads IPWatchdog.com. Those who argue against a patent system and say that patents inhibit innovation are intellectually bankrupt; willing to say anything no matter how wrong to achieve what they predetermined to be the preferred outcome. There is no talking to the anti-patent community because they simply ignore facts and reality. They prefer to wrap themselves around academic thought experiments rather than real, verifiable truths. They ignore the undeniable facts that when a country adopts a patent system economic progress follows. They balk at the mind-boggling successes of initiatives such as Bayh-Dole and argue for it to be dismantled, apparently convincing themselves that 7,000+ high-tech start-ups with millions of new jobs would have been created under the previous patent licensing regime which had been an abysmal failure by any objective standard.

Everyone promotes the virtues of innovation and the American innovator, which leads to the formation of a start-up business, which in turn leads to job creation and economic growth.  Yet at the same time patent haters keep their head firmly planted in the sand, actually failing to understand the basic definition of innovation.  Merriam-Webster defines “innovation” simply as “the introduction of something new.”  What is new about copying others?  NOTHING!  Thus, the undeniable truth is that patents do not hold up innovation, and those who are blocked by patents are nothing coming up with something new.  They are simply seeking to copy the work of others.

Why in the world would we ever want to protect copycats over innovators?  Manus Cooney, one of the top intellectual property strategists in Washington, DC, recently asked this question in an article published on IPWatchdog.com.  See Patent Verdicts we Planned For.  Cooney was writing about the near ridiculous rantings of those who believe the verdict that Android infringes Apple patents is a travesty.  Cooney wrote: “What the critics have not explained is how making it easier for a foreign company like Samsung to steal US-born innovation is in our long-term national interest.”  Amen!  And… by the way… why should it be a surprise that Android is a copy?  We all know it is a copy of the Apple operating system.  No one believed in the Apple system until it proved to be extremely popular, at which point in time the copycats came out.  Doing what someone has already done is NOT innovative.  It is the antithesis of innovative.  It is copying.  It is infringing.



The truth is a patent is an asset like any other business asset.  Some will be quite valuable and some will be marginally valuable and many will be worth little or nothing.  What matters is the quality of the patent and the breadth of the claims.  What you want is a broad set of claims that offers wide coverage, but not so wide that the claims are likely easily defeated.  Prolific Hall of Fame inventor — and billionaire — Dr. Gary Michelson once put it to me like this: “why would I want a claim that is invalid? That doesn’t help me. I want the broadest valid claim.”  See A Conversation with Gary Michelson.

There is a lot wrapped up in Dr. Michelson’s statement that goes a long way to explaining that a patent does not offer a monopoly.  First, if you want the broadest valid claim possible that has to mean that there is claim scope that you are not going after that could be supported by your invention because it is not likely patentable, or patentable after a meaningful challenge.  Thus, patent claims do not protect the grandiose thing you call your invention.  Patent claims, which are the only thing to which you are granted exclusive rights, cover a subset of what you invented, namely that subset that is unique and non-obvious when compared with the prior art.

This is an important thing to understand from many levels.  First, if you are engaging in bargain basement price hunting that will mean you will find a patent professional who has little time to do what needs to be done.  It is inevitable really.  The more time you can spend on a patent project the more detailed and better the results, but that should hardly be shocking.  That is true with virtually all projects, isn’t it?

The fact that it is the patent claims that provides the only exclusive right granted to the patent owner also underlies exactly how inventors get dupped into believing they have obtained more than they really have, and it also explains why the patent illiterate manage to convince themselves that patents provide a monopoly.  You see, the not so well kept secret is that those who know little or nothing never actually read the claims.  They look at the title of the patent and frequently nothing else.  Then after reading the title they fly off the handle about how it is ridiculous to grant a monopoly on this or that (in the case of patent haters) or they erroneously believe they have locked up the rights for a broad category of innovation (in the case of inventors).  Both are wrong, and wrong for the same reason.  Failure to read and understand the patent claims, which is nearly all that matters in an issued patent.

Unfortunately, turning a patent grant into cash is much more complicated than simply placing hotels on Boardwalk and Park Place, although you would never know that if you listen to the inventor who thinks his $1,200 patent will make them rich or the anti-patent community who is convinced that patents are the root of everything evil in the world.  Indeed, those who are against patents always seem to argue that a patent is a monopoly, or at least use those terms interchangeably.  Don’t be fooled into thinking that a patent is a monopoly.  Simply obtaining a patent will not result in the arrival of a money truck to your doorstep.

Just because an inventor has been granted a patent does not mean that there will be a market for the patent product, and without a market there can be no monopoly. The patent only gives the patent owner the right to exclude others from making, using, selling and importing. A patent carries with it no expectation for market success. Granted, if the product does have a market a patent can be a significant barrier to entry that insulates the patent owner from competition, but a patent in and of itself does not guarantee business success.

A patent only dangles the opportunity to achieve monopoly profits. This is due to the exclusive nature of the right and the ability to be the only player in the market. Again, a market is necessary, which means a product that people are willing to pay for is a pre-requisite. In the absence of a product that people want, and the business acumen to capitalize on a market opportunity, a patent will not result in riches.

Chief Judge Markey, the first Chief Judge of the Court of Appeals for the Federal Circuit, time and time again reprimanded scholars, attorneys and fellow judges for characterizing a patent grant as a conference of a monopoly. In Carl Schenck, A.G. v. Nortron Corp., 713 F.2d, 782, 786 n. 3 (Fed. Cir. 1983), Judge Markey stated:

Nortron begins its file wrapper estoppel argument with “Patents are an exception to the general rule against monopolies…”. A patent, under the statute, is property. 35 U.S.C. S 261. Nowhere in any statute is a patent described as a monopoly. The patent right is but the right to exclude others, the very definition of “property.” That the property right represented by a patent, like other property rights, may be used in a scheme violative of antitrust laws creates no “conflict” between laws establishing any of those property rights and the antitrust laws. The antitrust laws, enacted long after the original patent laws, deal with appropriation of what should belong to others. A valid patent gives the public what it did not earlier have. Patents are valid or invalid under the statute, 35 U.S.C. It is but an obfuscation to refer to a patent as “the patent monopoly” or to describe a patent as an “exception to the general rule against monopolies.” That description, moreover, is irrelevant when considering patent questions, including the question of estoppel predicated on prosecution history.

See also American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1367 (Fed.Cir.) (“The patent system, which antedated the Sherman Act by a century, is not an ‘exception’ to the antitrust laws, and patent rights are not legal monopolies in the antitrust sense of that word.”), cert. denied, 469 U.S. 821, 105 S.Ct. 95, 83 L.Ed.2d 41 (1984); Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152, 1160 n. 8 (6th Cir.1978) (“The loose application of the pejorative term ‘monopoly,’ to the property right of exclusion represented by a patent, can be misleading. Unchecked it can destroy the constitutional and statutory scheme reflected in the patent system.”).

Despite what you may have heard to the contrary, virtually no patent will lock up a market and hold others within the market hostage.  Certainly there can be foundational technologies that are of extreme importance, but those types of inventions are rare.  Most inventions are improvements or incremental advances of different magnitudes.  See Understanding Improvement Patents & Inventions.

It is also important for inventors to understand that patents are fragile rights.  When you define your invention you are essentially placing your stakes in the ground and defining the exclusive rights you now have.  It is hard to define your rights in the first instance with as much specificity and detail as required, while at the same time anticipating what others will do and how they might attempt to get around your rights.  Like most things in life, it is harder to do in the first instance than it is to get around or undo later.  Thus, when you have an innovation and you are making money basic laws of economics suggest that there will be others who will seek to enter your marketplace and compete.  It is that simple.

A patent does not guarantee you the right to exclude others from a market.  A patent provides you the right to prevent others from making, selling, offering for sale or importing an invention that is identical to what you have defined in the claims of your patent.  For that reason when you find an innovation that is lucrative you should not think in terms of getting a single patent, but if there is money to be made others will want into your market so you must think about continually innovating, pushing out the envelope of protection and obtaining more patents.

I tell inventors all the time to model themselves after success, not after failure.  One company that every inventor should learn more about is Apple.  See The Apple Way: Repeated Innovation + Patent = Domination. While they have made some bad business mistakes in the past, they are a true innovator and when they come across an innovation they patent it and continue to advance innovation and push out the envelope of exclusive protection.  This is an excellent model, and one that inventors can learn from.

The moral of the story for the inventor is this: you need to approach inventing as a business if you are going to make any money doing it.  As you proceed to achieve this goal always keep in mind that if it sounds too good to be true it probably is too good to be true.  The thought that a single patent can lead to a monopoly that unfairly or improperly holds an entire market hostage may sound like a good argument for those who hate patents, and it might sound very appealing for those who are inventors, but the truth is that like so many other things in the innovation space it oversimplifies reality to the point that it is simply incorrect.

The moral of the story for those in the anti-patent community is this: get a clue!  Why not do something radical like becoming informed on the topics on which you pontificate?  Treating patents like they hold up innovation is ridiculous.  You need to re-calibrate your definition of innovation and stop pretending that those who copy are innovators.  That is insulting and extraordinarily disingenuous even for folks who are constitutionally challenged by the truth.

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Posted in: Anti-patent Nonsense, Apple, Companies We Follow, Educational Information for Inventors, Gene Quinn, Inventors Information, IP News, IPWatchdog.com Articles, Patents


About the Author

is a US Patent Attorney, law professor and the founder of IPWatchdog.com. He is also a principal lecturer in the top patent bar review course in the nation, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam. Gene started the widely popular intellectual property website IPWatchdog.com in 1999, and since that time the site has had many millions of unique visitors. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, USA Today, CNN Money, NPR and various other newspapers and magazines worldwide. He represents individuals, small businesses and start-up corporations. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

 


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98 comments
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  1. Excellent commentary as always! There are significant misconceptions about the ambit of patent protection, which often lead people to believe that Patents are big evil. I think the fundamental knowledge of patents should be made mandatory for all graduate students in Universities. Start-ups too need to increase the patent awareness to mitigate risks in their operation. Many people look at patents and since they have no clue about what exactly is covered by the patent, they pass the judgement that “Patent system is broken”. They complain about issuance of some of the litigated patents for “obvious” inventions. They do not realize that many patents for these seemingly “obvious” inventions were filed 8-10 years back when the concerned covered innovation may not be that obvious! All in all, a great read.

  2. First, I am an unapologetic defender of the patent system, which is hardly news to anyone who reads IPWatchdog.com.

    Gee, I would have never guessed .

    Cooney was writing about the near ridiculous rantings of those who believe the verdict that Android infringes Apple patents is a travesty. Cooney wrote: “What the critics have not explained is how making it easier for a foreign company like Samsung to steal US-born innovation is in our long-term national interest.” Amen! And… by the way… why should it be a surprise that Android is a copy? We all know it is a copy of the Apple operating system. No one believed in the Apple system until it proved to be extremely popular, at which point in time the copycats came out. Doing what someone has already done is NOT innovative. It is the antithesis of innovative. It is copying. It is infringing.

    And the Apple touch interface is just a copy of the Palm touch interface, with bits of OS X, LINUX, and Windows tossed in. The patents that Apple introduced at the Samsung trial were sub-standard at best. Apple is one of the greatest copyists in the business. They then take the copy, and make it better. Whether the improvements they add would be patentable would depend upon what the improvements are, and whether there is prior art.

    This is where the United States Patent Office falls down. It is incapable of finding prior art, which would often invalidate technological patents. Design patents such as Apple’s famous patent for a rectangle with rounded edges also have prior art problems. Many companies designed devices, like the Linux powered Motorola competitor to the Palm Pilot. Since there were previous portable devices with the same design, that patent should not have been issued. That it was for a phone instead of a PDA would make no difference, since smart phones are PDAs with cellular network interfacing capabilities, in other words the concept of obvious.

    Quite frankly the entire trial was a sad joke, added and abetted by the USPTO. Take an underfunded agency, issue guidelines requiring quick action on applications, and you have a recipe for disaster.

    Wayne

  3. Gene,

    Just to add a bit more fuel to the anti-spark that douses the flames of genius, please note the following:

    http://law.scu.edu/hightech/2012-solutions-to-the-software-patent-problem.cfm

    snippet: “… this conference will use a premise–that software patents are a problem–as a springboard for discussing ways to address those problems. In rapid succession, patent experts at the conference will present innovative proposals (ranging from abolishing software patents to company/industry self-help), debate their relative merits …”

  4. Gene,

    On the topic of “innovative copycat”, many of us have personally experienced it; the boss or colleague who jumps up first at a meeting and claims credit for being the originator of a good idea we just shared with them moments before.

    Why do they do it? How can they do it with a straight face? Those are questions best left for another time.

    However we can quickly see why they loathe a system that records in black and white the real story of who invented/ originated it first and details exactly what was invented. That system is called the patent system.

    No need to apologize about defending the system.
    It is the idea thieves who need to apologize.

  5. Most inventors are also “copycats” because most patents are improvements upon existing technology. If any essential aspect of that existing technology is still under patent protection, the potential exists for the new patented improvement upon it to be blocked. It is particularly problematic when the incumbent technology is a defacto industry standard with a succession of minor evolutionary patents of its own that extends its market hegemony indefinitely.

  6. The problem here is that a great number of modern patents target computer software. So what, I hear Gene and “step back” ask? Well, if you aren’t a practitioner in the field, I can understand that reaction; I’ve had numerous very irritating conversations with people who work in the fields of patent filing and litigation where they simply don’t understand why software patents should not be permitted or indeed what the problems are with them. In fact, many of them eventually concede that they don’t really care either way — it just makes them money and that’s that.

    Us software developers, though, do care, because we’re very vulnerable to certain types of legal actions relating to patents, and sadly there is no evidence that either the courts or the public (who will be in a jury) understand how software development works, nor is there any evidence that the U.S. court system in particular is at all fair to patent defendants (for instance, if sued by a patent holder, there is almost no chance that you will get to recover your legal costs EVEN IF THE PATENT HOLDER LOSES).

    Worse, the U.S. Patent Office has for years been issuing patents on things that are not in the slightest bit inventive (e.g. one-click purchasing, or certain uses of XML in a document file) and in many cases cover things that are a straightforward logical step that any competent software developer would take when placed in a particular situation. The trouble is that you need to be a competent software developer to understand that fact.

    Further, I have to tell you that we practitioners—that is, those of us who actually do the innovation in the field of computer software—overwhelmingly DO NOT WANT PATENTS. I have never, in fact, met a developer who was in favour of patenting software. Not one. I’m sure they exist, but I have yet to meet one. Sometimes people cite Nathan Mhyrvold as an example, though I’m not convinced he is really a software developer (his degrees are in mathematics, physics and business, not computer science or software engineering), and ironically the start-up he co-founded in Oakland “sought to produce Mondrian, a clone of IBM’s TopView multitasking environment for DOS” (doubtless these days he would have been sued into bankruptcy for merely considering infringing all of those “lovely” patents…). I have, however, heard plenty of stories of peoples’ employers making them apply for patents of which they are later ashamed.

    Why don’t we think we need patents? We don’t need them. The rewards for success are large enough already, and we’re a competitive bunch…

    p.s. As regards Apple versus Samsung, there’s no doubt Samsung has outrageously copied some things from Apple. I can see why Steve Jobs was so exercised about it. However, patenting swipe-to-unlock is just ridiculous; that isn’t an invention in any reasonable sense of the word. Its obviousness is so plain that even an attorney with a vested interest can surely see that it shouldn’t have been patentable.

  7. Alastair-

    You treat me as if I don’t know anything about software. Do you even know anything about me? Do you know I am an electrical engineer with a computer engineering background and focus? Do you know that I write software? Do you know that the overwhelming majority of my work in the patent space is related to software related innovations?

    You say: “the U.S. Patent Office has for years been issuing patents on things that are not in the slightest bit inventive…” And then you site a patent that was issued over 15 years ago as evidence.

    Simply stated — you don’t know what you are talking about. You obviously don’t care enough about the issue to stay informed, but that doesn’t stop you from offering erroneous views.

    Tell me, are you aware that there are entire Art Units at the Patent Office devoted to software and business methods that issue under 10% of the patent applications they receive? That sure doesn’t sound like the Patent Office is handing these things out left and right, does it?

    Are you aware of the fact that Bank of America and others have for over 8 years unsuccessfully tried to patent various iterations of the “keep the change” initiative? That was clearly unique when first instituted but still no patent. Curious how that could be the case since you say that patents are handed out for things that are the slightest bit inventive.

    Your trouble is you are ignorant. You are making arguments based on what happened over 12 years ago without any regard to the reality of getting a patent in this space over the last decade. That makes you a part of the problem.

    If you don’t like patent then you are hardly an innovator. All you want to do is copy and people like shouldn’t even have a place at the table when discussing this issue. The U.S. Constitution grants Congress the right to protect the innovations of inventors. Those who are copycats, like the so many lemmings in the software community, are not innovators. They are copycats that don’t care enough to research whether they are infringing the rights of others.

    Finally, of course we need patents. Just look at the world map and see where there are no patent regimes in place. There are plenty of third-world locations. So if you don’t want a patent system move to a place where there is not one and see how happy you are with the state of the economy and quality of life in general.

    Really. Get a clue.

    -Gene

  8. Gene,

    The antitrust laws are the exception to property rights, not the other way around. In the 1970s the FTC used the antitrust laws to attack patents and force US companies to give away their patents (technology) for free – see Xerox. The result was that Japanese companies used our technology to dominate the copier, electronic memory, and other markets. US companies quit investing in R&D because there was no return to be had. This policy along with other anti-property right policies resulted in stagflation and high unemployment – sound familiar?

    It is funny that rabid antitrust proponents (now rebranded as competition law) are quite happy to support government granted monopolies and cartels, like the electric company, cable company, taxi companies, the FCC which limited the number of networks for years. The antitrust laws are not a logical extension of the Statute of Monopolies. The Statute of Monopolies limited the power of the King (government) and protected property rights. The US antitrust laws expanded the power of government and destroy property rights. Any objective observer of US antitrust law has to admit that they are really about politics, not about law. The Sherman Act and related legislation should be repealed.

    Btw – Patents are not monopolies they are property rights and you cannot make “monopoly profits” off of your property rights.

  9. Ron, an improvement is not a copy. It is something original. Every invention is a combination of known elements (see conservation of matter and energy) and therefore every invention is an improvement in some way or another. The laser is an improvement of the light bulb, or an improvement on a MASER, or an improvement on a sodium light and filter. It is non-sense to suggest that some inventions are improvements and others are not.

  10. “Why in the world would we ever want to protect copycats over innovators?”

    Good question, there are circumstances where we wish to encourage copycats, such as with the 3G standard, here the basic idea and functionality of a smartphone was set down in the 1990’s. The use of standards enabled all parties to innovate from and around a common interoperable platform and hence provide ‘copycats’ with a degree of protection from extortion from holders of standard essential patents, as we have seen this approach has created a very large and profitable market.

    “Cooney was writing about the near ridiculous rantings of those who believe the verdict that Android infringes Apple patents is a travesty.”

    But the US court didn’t find that Android infringed Apple’s patents, they found that Samsung infringed Apple’s patents in the design of the product package they put around Android and a handful of feature enhancements made to vanilla Android.

    It is questionable as to whether Android per sa actually did and does infringe Apple’s IP to the extent some would like to believe, due to the timing of their respective developments, also just because Apple released to market a product with features similar to those contained in Android released a few months later doesn’t automatically mean that Google copied those features from Apple. However, Apple in combination with the press – who like to over simplify things, have been successful in planting the erroneous idea that Android “is a copy of the Apple operating system.”, just as Microsoft has been successful in spreading FUD over Linux. The qeustion is whether Apple will do a Microsoft and quietly

  11. The point upon which we agree is that most or all inventions involve some copying and some improving, to one degree or another. Inventing and infringing are inseparably intertwined. The free market solves most of the potential conflicts arising from that inherent dichotomy, but not all. So there is a place for an antitrust solution to those pathological situations where the patent system actually inhibits progress. It not a question of patents being good and antitrust being bad or vice versa. Both have their place. But both need significant reform, to allow valid disputes to be efficiently resolved without bankrupting one or both parties.

  12. Really, if all of us “practitioners in the field of software development” do not want patents, where are all these software patents coming from? But of course! There must be a bunch of lawyers doing nothing but churning out software patent applications and filing them!

    Please. People who claim all software engineers don’t want patents are people trapped in an echo chamber. Here, let me counter your anecdote with mine: All the software engineers I’ve met either agreed with software patents… or *didn’t even know* what patents are until I explained it to them! Not a single one was against patents.

    It is an unappreciated truth that the vast majority of software engineering consists of unimaginatively devising ways of managing data (see: “CRUD”) to fulfill an infinite multitude of pre-defined business requirements. True, even doing CRUD well can be complex and challenging work, but it’s almost never novel in the technical sense. Most developers are hardly aware that they could be doing creative, original, novel work discovering new problems and inventing new solutions, instead of simply throwing up web interfaces to manipulate data according to logic pre-defined by somebody else.

    Yet it is often these people, who’ve never done anything innovative in their life, who find every patent obvious and trivial (without, as Gene says, understanding the first thing about patents) and then claim patents are holding up innovation.

  13. “A patent does not guarantee you the right to exclude others from a market. A patent provides you the right to prevent others from making, selling, offering for sale or importing an invention that is identical to what you have defined in the claims of your patent.”

    I think Gene with this comment you get to the real nub of the problem with patents, namely what they are really useful for, particularly with respect to high tech consumer products. It also allows for a different interpretation of what a ‘copycat’ is, namely someone who has implemented an original feature (eg. slide-to-unlock) that could be caught by the broadness of the claims made in your patent.

    To back up much of what you say about “approaching inventing as a business” and the delusion of ” the inventor who thinks his $1,200 patent will make them rich”. I think it is useful to consider some of the software patents Apple has been asserting recently, namely: slide-to-unlock, enlarging documents by tapping the screen, ‘bounce back’ feature when scrolling beyond the end of a page. What is obvious (to me) is that Apple has put more effort (time and money) into the patent than into the development of the actual software that implements the feature. All of these features are things that in many software development organisations would get created by individual developers and end up in the final product by consensus because they are “neat ideas”, additionally, in typical software development organisations such neat ideas would go under the radar with respect to patentability – why patent something that only took a developer a few hours to knock up? However, we can see that Apple’s game plan isn’t so much to make a return on investment on an individual patent but to protect their culmulative R&D and brand image as a design leader.

  14. Roland-

    By definition if it is caught by a patent it is not original. Those who copy have NOT created an original feature.

    It also seems you are suggesting the software space is somehow unique. That is another mistake made by those in the software community who are unfamiliar with patent law. There is always a question about whether to protect an incremental innovation or improvement. Apple chooses to do that, which they have a right to do. The fact that others don’t do that or make different choices is a question for them to address, not a reason to suggest software patents are bad or Apple ought not to be doing what they are doing.

    Frankly, I don’t understand why companies don’t follow the Apple model. It works.

    -Gene

  15. “It is funny that rabid antitrust proponents (now rebranded as competition law) are quite happy to support government granted monopolies and cartels, like the electric company, cable company, taxi companies, the FCC which limited the number of networks for years.”
    In the case of electric companies and cable companies, they are what it known as a natural monopoly. A single company will operate more efficiently than competing companies. Generally speaking, most people that support antitrust law want regulations or some other safeguard to protect against abuse of such a monopoly, including being a membership corporation like most electric companies are. As for cable companies, they have been a good example of the dangers of a monopoly being used in a for-profit manner. This is especially true in regards to high speed internet, where countries adopting various other models have leapfrogged us.

    I’m not sure that taxi companies naturally fit that profile, although I’ve not seen a lot of support for taxi monopolies either. Also, I’m not quite sure what you mean in mentioning the FCC. They do grant what is essentially a broadcasting monopoly for a particular spectrum, but they are not really a cartel or monopoly any more than other regulatory agencies are. There are questions to what is the appropriate way to deal with spectrum and the complications of interference, but that is a complex mixture of technology and economics that doesn’t produce a simple answer. The prevailing viewpoint for a long time was that exclusive use of spectrum was the most efficient way of bringing value to the public, and people that hold that to be true would support spectrum monopolies, at least within certain conditions. There are well reasoned challenges to that system, but where one stands on that issue would be based more on the science behind it and the models one thinks would fit within an alternate system.

    By contrast, publicly known intangibles are not a natural monopoly by any means. They are on the absolute other end of the spectrum. They are, as Thomas Jefferson said, “one thing less susceptible than all others of exclusive property.” The exclusion of others via a patent is not itself economically efficient, and it’s utter nonsense to suggest otherwise. If it were, then we would have patents last indefinitely. Instead, the reason to grant the patent is supposed to be to encourage innovation, with the patent and its social costs being the means to that end.

    I think part of the problem here is that ‘monopoly’ is seen as a perjorative instead of a descriptive term. It’s quite understandable, given that modern economics opposed them in so many cases. Monopolies aren’t inherently bad, so the reasonable question isn’t whether or not a patent is a monopoly or not, but rather, whether or not it is the kind of monopoly we should permit, and under what conditions.

    Gene,
    “By definition if it is caught by a patent it is not original. Those who copy have NOT created an original feature.”
    No, it means that it isn’t entirely original, but nothing ever is. I think what Roland is specifically trying to address is that overly broad patents can get in the way of different ways of solving the same problem, something you and others here have often said is one of the advantages of having a patent system.

    It’s statements like these from you that disappoint me the most. You can have a reasonable, intelligent viewpoint on many subjects, but when you take something personally, you seem to throw rational thought out of the window. The patent system undeniably has costs and benefits, and while there is a lot of room to debate the ratio of them in a particular system, denying the existence of either is childish. Such a line of thought is also in opposition with how to make improvements on such a ratio. As someone who is a strong proponent of patents, you should be vigilant in trying to maximize the benefits and minimize the costs of the system. That means that you have to advocate saying no to patentees sometimes and discouraging abuse within the system.

  16. Bobby,

    I am quite aware of the Natural Monopoly argument. It doesn’t hold water. The same argument could be made with all products and services and often has been. Why have two marketing departments for two shoe manufacturers? Why have to two separate factories? Look at all that wasted space on the shelves of retail stores for shoes that are the same or very similar. The antitrust law have not solved problems of the free market it has created them. This includes the present problem of not being able to efficiently license patent rights. In the 1880s somewhere near 75% of patents were licensed or assigned (not employee assignment). Then the antitrust crusaders threw up road blocks to the freely entered into contracts between inventors and manufacturers. The result was the stagflation of the 1970s and the present mega lawsuits between the cell phone companies. Antitrust law is not a part of a free market, they are government manipulation into the market to pick winners and losers.

    Actually there is a very active support for monopolies, duopolies, etc in the taxi market. Clearly you are unaware of Jitney buses and the rabid attack by city governments to the free market solution of cheap, reliable, taxi/bus services.

    Thomas Jefferson is WRONG – he was also wrong about the French Revolution. Patents are property rights, not monopolies. The source of all property rights are creation and inventions are the ultimate form of human creation. The basic right provided by property rights is exclusion. Note patents are awarded (under a FTI) to creators.

    Despite the nonsense of the economics profession, a monopoly is a government granted right to a market. That is exactly the definition of monopoly used by the Statute of Monopolies. There has been an attempt to expand the definition to include the legal use of one’s property to succeed in business. This Orwellian definition is used to transfer power from the private sector to the government. The same government that limited the number of television networks for years (creating a monopoly for CBS, NBc & ABC), limited the number of phone companies, created Solyndra, and created a Federal Reserve with a monopoly over the US currency and which is legally allowed to counterfeit money. The Antitrust Laws are not part of a free market, are anti-property rights, and have been used by statist to expand the power of government. There is absolutely no statistical evidence that antitrust laws have helped consumers or improved the economy, but there is plenty of evidence to the contrary – see FTC’s 9 no nos of patents which destroyed the economy and innovation in the US in the 1970s.

  17. Bobby and Ron

    You do not understand the definition of the word original. Original does not mean you made something from nothing, it means that created a new combination of existing elements that solve a problem. Unless you understand this, you will continue to make the error that no invention is original. Every invention is original that is the definition of an invention and our present patent law already excludes many legitimate inventions from patent protection under 35 USC 103.

  18. I am quite aware of the Natural Monopoly argument. It doesn’t hold water. The same argument could be made with all products and services and often has been. Why have two marketing departments for two shoe manufacturers? Why have to two separate factories? Look at all that wasted space on the shelves of retail stores for shoes that are the same or very similar.

    For profit competition nets better results and more efficiency in most markets, and is usually pretty good at self regulating. It does not result in better results in the case of natural monopolies, at least compared to municipal and member owned organizations.

    Actually there is a very active support for monopolies, duopolies, etc in the taxi market. Clearly you are unaware of Jitney buses and the rabid attack by city governments to the free market solution of cheap, reliable, taxi/bus services.

    I don’t deal with taxis very much, so I can’t express a great deal of familiarity. I’ve also not seen a great deal of discussion of the matter by staunch antitrust advocates. I’m sure there are strong supporters of those monopolies, but I’ve seen no evidence of overlap in those demographics.

    Thomas Jefferson is WRONG – he was also wrong about the French Revolution

    Ideas suck at being exclusive property, especially if they aren’t secret. You can argue the ridiculous French inventor’s natural rights stance all day until you are blue in the face, but reality begs to differ, and it is very insistent. Ideas in the abstract are non-rival, and making them excludable is very difficult, particularly if they are known to the public. The early French patent system was mostly toothless precisely because of that reason. Without disclosure, there was an incredible amount of overlapping independent invention, and thus their patents were pretty useless.

    Despite the nonsense of the economics profession, a monopoly is a government granted right to a market. That is exactly the definition of monopoly used by the Statute of Monopolies.

    The statute of monopolies covered legal monopolies, which are a subset of monopolies. Also, the Statute of Monopolies was, in a nutshell, “no more legal monopolies will be granted, EXCEPT for new inventions.” What we have as patents today are a very small subset of the monopolies granted by ‘letters patent’ centuries ago.

    The Antitrust Laws are not part of a free market

    Neither are patents.

    You do not understand the definition of the word original. Original does not mean you made something from nothing, it means that created a new combination of existing elements that solve a problem.

    I was correcting Gene’s erroneous statement. You can be original is the sense you are defining and still infringe a patent. Therefore, infringing a patent doesn’t mean you aren’t being original. Copying and creating are not mutually exclusive.

  19. Bobby,

    You are stating you conclusion, but providing absolutely no evidence

    “For profit competition nets better results and more efficiency in most markets, and is usually pretty good at self regulating. It does not result in better results in the case of natural monopolies, at least compared to municipal and member owned organizations.”

    It is not French – it is Locke and Ayn Rand. It is the only basis for property – creation. Every other system is arbitrary government power.

    The only monopolies are those created and enforced by government. See Milton Friedman.

    I AGREE: “Therefore, infringing a patent doesn’t mean you aren’t being original” However, this does not mean that copying and creating are not mutually exclusive. They are by the very definition. Now I know that you want to say that partial copying is still copying. For instance, if my incandescent light bulb has a high resistance filament, but you have one with a low resistance filament, then did not I copy part of your design? Original means a unique combination, not something made out of nothing. My high resistance filament is unique. Just because it has similar elements or it was my inspiration, does not make it original. Everything is made of existing elements. So no, correctly defined a copy is exclusive to an original. But original does not and cannot mean made out of nothing. So yes, you can both obtain a patent and infringe another patent.

  20. Gene,

    Let’s deal with your points:

    “You treat me as if I don’t know anything about software.”

    Hardly. My comment was written in a style that will be accessible to non-software-developers, because that’s a useful thing to do. Part of the problem is that laymen do not understand the field sufficiently to distinguish between things that are trivial steps based on either the problem being solved or the prior art, and things that are genuinely difficult. Indeed, it can be quite counter-intuitive even to a professional software developer.

    “Do you even know anything about me?”

    I know that you describe yourself (above) as a patent attorney and that you work for a law firm. Law firms don’t develop computer software — at least, not often — and given your job title, the likelihood is that you are in fact a lawyer and not a software developer.

    “Do you know I am an electrical engineer with a computer engineering background and focus?”

    No, I didn’t. However, when you say that I’m guessing that you actually mean that you have an academic qualification in that area, *not* that you are a professional practitioner. That guess is on the basis that (a) you describe yourself as a patent attorney and (b) you work for a law firm. Most likely, then, your economic activity is in fact related to the filing and/or litigation of patents. i.e. not software development.

    “Do you know that I write software? Do you know that the overwhelming majority of my work in the patent space is related to software related innovations?”

    I didn’t know the former, no (I’d be interested to know what software you have written), and I could have guessed the latter, based on conversations I’ve had with patent lawyers in recent years.

    “You say: “the U.S. Patent Office has for years been issuing patents on things that are not in the slightest bit inventive…” And then you site a patent that was issued over 15 years ago as evidence.”

    Seems reasonable to me. Are you claiming that they have stopped issuing inappropriate patents? Like, for instance, swipe-to-unlock (8,046,721)? Let me explain for a second why that is a good example of something that should not have been granted. Imagine that you are a designer, and you are sat in front of a touch-screen device. Clearly you want to lock input so that the user can have the device in his/her pocket without it doing anything. Equally clearly, you must be able to unlock it. Given that you wish to use the touchscreen (a reasonable starting point), the simplest gesture is a tap. Can you use a tap to unlock it? Answer: no, because it could happen accidentally. What is the second simplest gesture? A single-finger linear swipe. Can you use that? Yes, you can. Is that line of reasoning REALLY worthy of patent protection? Seriously, are you claiming that that is reasonable?

    “Tell me, are you aware that there are entire Art Units at the Patent Office devoted to software and business methods that issue under 10% of the patent applications they receive? That sure doesn’t sound like the Patent Office is handing these things out left and right, does it?”

    That statistic is meaningless without knowing how many applications they receive, and indeed without reviewing the patents they have actually been granting.

    “Your trouble is you are ignorant. You are making arguments based on what happened over 12 years ago without any regard to the reality of getting a patent in this space over the last decade. That makes you a part of the problem.”

    On the contrary, the objections of many of us software developers are equally valid when applied to patents being granted today, never mind 12 years ago. The swipe-to-unlock patent is a prime example.

    “If you don’t like patent then you are hardly an innovator. All you want to do is copy and people like shouldn’t even have a place at the table when discussing this issue.”

    That is an outrageous claim, and so, of course, untrue.

    “The U.S. Constitution grants Congress the right to protect the innovations of inventors.”

    Yes, it does. However, its authors never intended to provide a legal monopoly or unjustifiable license fees for every trivial idea that USPTO (or any other patent office anywhere else on the planet, since USPTO is not the only problem here) cares to issue a patent for.

    “Finally, of course we need patents. Just look at the world map and see where there are no patent regimes in place.”

    I don’t recall suggesting that patents were unnecessary in a general sense, or that they had no up-side. However, it is a bit of a stretch to assert that e.g. poverty in sub-Saharan Africa is in any way related to the lack of a patent regime in that part of the world.

    The fact is that patents were intended to compensate inventors for the cost of innovation. The costs of innovation where things like swipe-to-unlock are concerned are negligible and it is not in society’s best interest to grant patent protection to such a trivial idea. The same is true of most software “innovations” I have seen, especially with the long patent terms we have today.

    “Really. Get a clue.”

    It’s amazing that a patent attorney would respond in so unprofessional a manner. It does you, your firm, and your profession no credit.

  21. First af all,
    all my compliments to the great comments pointed out by alastair !!!

    Let me add something about what patent troll means… just reading today news…
    http://fxpips.com/apple-nasdaq-aapl-hoarding-lte-patents-to-protect-firm-from-samsung-retaliation-ipad-beating-pc-sales-in-schools/
    “Based on reports coming from Seoul, South Korea, Apple which did not have a single LTE patent in 2011 has gone to filing all 318 LTE patents today.
    Cupertino created only 44 of these patents while the others were acquired from the once-popular Nortel when it was split up.”
    So is either Apple a real LTE inventor or is US Patent system broken?
    http://www.lowyinterpreter.org/post/2012/09/05/Reader-riposte-The-absurd-US-patent-system.aspx

  22. I see four basic viewpoints here regarding patents and monopolies:

    1. Pro-patent, anti-antitrust – Believes that exclusive economic advantage is good and the government should promote and not prevent it (Conservative).
    2. Pro-patent, pro-antitrust – Believes that government should promote exclusive economic advantage to stimulate investment in innovation but prevent it when it inhibits innovation (Mioderate).
    3. Anit-patent, pro-antitrust – Believes that exclusive economic advantage is harmful and the government should prevent and not promote it (Liberal).
    4. Anti-patent, anti-antitrust – Believes that the government has no role in either promoting or preventing exclusive economic advantage (LIbertarian).

    (Note: by “pro/anti” I mean that one leans in that direction, not necessarily to be absolutely for or against).

    Regarding software patents, I think the reason that some oppose them is that pure software typically requires relatively less capital investment to commercialize than other technologies. Since they don’t need much capital, the exclusive economic advantage (needed primarly to attract investment) is seen not as a help but as a hindrance. Patents do not encourage innovation. They encourage _investment_ in innovation. Having said that, I think software developers who truly innovate are naive not to take advantage of the patent right. Someone will make money from their invention and it won’t be them.

  23. Patents do not encourage innovation. They encourage _investment_ in innovation. Isn’t that the same thing. Investment includes the inventor being willing to spend their time inventing, instead of making copies or doing routine administrative work.

  24. alastair,

    God bless you for popping out of the wall works to proclaim that you “would have” invented “slide to unlock” IF ONLY someone had sat you down and fully described THE PROBLEM to you.

    I am not going to accuse you of suffering from an extreme case of hindsight.

    The reason is because we all suffer from that malady.

    It’s how the human brain works.

    Therefore I’m going to pick on “me” rather than you so you don’t feel any of this is personal. (It’s not)

    There is a part of me that believes me is “special”.

    If asked to place myself intellectually among the ranks of humanity, I naturally place myself in the top 10%.

    Therefore if anyone comes up with something I didn’t think of –where that other person is 90% likely to be below me in the intellectual ranking spectrum– I quickly understand that “I could have easily invented that too” but did not bother to because it is beneath me to even waste my time working on it.

    There is a part of my brain that is constantly re-writing history.

    I imagine that instead of clam-shell type cell phones and instead of keyboarded devices (ie the BlackBerry) I always knew, even before they came out that the mobile future belonged to the open face multi-point-touchable interface with only 4 click buttons.

    I imagine someone sitting me down in front of an Apple iPhone number 7 (even if that model has not been revealed to anyone else in the world) and me instantly proclaiming: “Eureka! I see THE PROBLEM and I see the solution to the problem. It is oh so obvious!”

    Of course that is just me day dreaming about wonderful me.

    I end with some blank lines below so that “you” can fill in an enabling description of the next great thing that will “obviously” appear in the Apple iPhone of two or more generations from now:

    __________________________________________________________
    __________________________________________________________
    __________________________________________________________

    (please share that next “obvious” thing with us. peace, no hard feelings, all of us have hindsight driven brains, even examiners at the patent office)

  25. p.s. to alastair,

    Please do not come back with “Facial Recognition to Unlock”
    I frequently read Google news as do many other people.

  26. You are stating you conclusion, but providing absolutely no evidence

    Which part are you having doubts about? That competition bears better results in most markets, or that competition doesn’t result in better results in natural monopolies? Both are pretty basic economics.

    It is not French – it is Locke and Ayn Rand. It is the only basis for property – creation. Every other system is arbitrary government power.

    Well, by a strict interpretation, only a handful of physicists have ownership of anything, and they don’t own much. However, you likely mean that by taking existing elements and making something new with them, you own that something. However, that isn’t true either. If I take wood from your fence and build a doghouse with it, I don’t legitimately own the doghouse.

    However, what I was speaking specifically was the notion that patents exist as a natural property right. That is a notion that is of French origin. The American legal tradition is that patents are a utilitarian institution to promote progress. This is made clear by the constitution, which says that our private property cannot be taken for public use without just compensation, while it says that a patent system must be for the purpose of promoting the arts, and that the duration of the patent must be limited. Therefore, the constitution requires that patents be taken from patentees at some point without any compensation, while private property must not be taken without compensation. To espouse patents as a natural property right is downright un-American.

    The only monopolies are those created and enforced by government. See Milton Friedman.

    No, there are multiple kinds of monopolies. There are legal monopolies, those created and enforced by the government, which include patents. There are also natural monopolies, which will arise in a unadjusted market by the nature of a particular business. There are efficiency monopolies, where a single company is so efficient that others cannot profitably enter the field, but this is only true while the efficiency of that company cannot be matched.

  27. Gene [re comment 14]

    >”By definition if it is caught by a patent it is not original. Those who copy have NOT created an original feature.”
    Yes I understand that under patent law an “original feature” has an important different meaning to that used by the public at large. I think Bobby and Dale got my point that, particularly with very simple incremental change, there is a likelihood that two different people/teams think up and implement effectively the same original feature. As you pointed out, ” A patent provides you the right to prevent others from making, selling, offering for sale or importing an invention that is identical to what you have defined in the claims of your patent.” hence the party who gains the patent first will be deemed to have created the original feature and the other party will be deemed to have copied, (unless a case can be for determining otherwise). However, this does not automatically make the non-patent holder a “copycat”.

    >”It also seems you are suggesting the software space is somehow unique”
    No, I know a lot about the IT solutions space and hence am just caveating my observation.

    >” I don’t understand why companies don’t follow the Apple model.”
    My thoughts are that apple’s approach is appropriate to those producing high margin mass market consumer products. However, for companies in smaller markets and lower margins the approach is much harder to justify. I think the lesson from Apple, with respect to small increments and features, is not to pre-judge what is and isn’t patentable, but to make an assessment in the context of the complete product.

    Roland

  28. Ron [comment 21]

    “I think software developers who truly innovate are naive not to take advantage of the patent right. Someone will make money from their invention and it won’t be them.”

    The problem with the majority of software developers is that they are employed and hence have signed over their patent rights to their employers. In previous articles and in my comment above I’ve noted that the majority of employers do very little to truely value and protect the IP their employees create on their behalf. I suspect that part of the attitude of developers is a reflection of this attitude.

  29. Roland,

    On any given day you might decide to strike it out on your own with an Aha you just had.

    In that case, you will no longer be under your employer’s contract anymore and you can start taking ownership in the new IP that you develop.

    You would be foolish to not secure patent rights in any IP (software and/or otherwise) you develop which is of significant value in the market place.

    Your call

    (… as was said by the Canadian lighthouse operator in response to the US Naval Destroyer that was insisting that the obstinate “vessel” which the operator was manning yield way to the fast oncoming US Destroyer)

  30. Dale,

    It is true that an inventor invests time and effort to conceive an invention. The financial cost to reduce it to practice varies widely depending on the technology. The cost to fully commercialize varies even more, especially toward the high side. But inventors and creative people in general are internally motivated. They can’t help but innovate. The patent incentive is more directed at the development and commercialization of the invention beyond the resources of the individual inventor. Investors are always looking for an “unfair advantage” to help insure the return of and on their investment. Otherwise their capital won’t last long.

    Roland,

    If inventors as a whole, including software develpers, were united in refusing to sign away their IP rights to their employers without reading the fine print, they would be amazed at the negotiation leverage that they would have. They really don’t know the strength of their own position. They rail against the patent system when in fact it could be their best friend and protector.. But most people don’t have that entreprenuerial, independent mindset. They are all too willing to trade away their rights for perceived security. Don’t get me started because exactly the same is true in the political sphere.

  31. “If … software developers, were united”

    Ron Hilton,

    That’s what we call a “union”.

    However most software coders are too “smart” to join a union.
    Most software coders are too “smart” to understand why software patents make their work product more valuable.

    Most software coders are too “smart” to listen with an open mind.

    Sigh.

  32. A union is just another security blanket – big labor, big business, big government. They all have their place, but individual initiative has to be prime mover for society and its institutions to thrive.

  33. On any given day you might decide to strike it out on your own with an Aha you just had.

    In that case, you will no longer be under your employer’s contract anymore and you can start taking ownership in the new IP that you develop.

    One, you are assuming that there is an Aha, better known as a Eureka moment, which is almost universally fictional. The closest thing to it generally being dumb luck. It also neglects the very strong likelihood of the contract having an moonlighting clause that would mean that even if you ‘invent’ something on your own time, you are going to be unable to get a patent on it. Even if you truly had a Eureka moment off the clock, there’s going to be a good enough case to tie you up in court if you attempt to pursue your own business venture. Employers generally have more available resources than employees, so an ordinary employee probably can’t afford to fight it, especially since such a lawsuit would be a major concern for potential investors. Even if your employer doesn’t have such a clause, you are able to get funding, and your patent is one of the minority that has financial value, there are still competitors in the market that may have patents essential to your entry into the market, including your previous employer.

  34. Roland,

    you make many good points but you are just wrong about “But inventors and creative people in general are internally motivated” B. Zorina Khan and Jacob Schmookler, economists, studied this issue in depth and most inventors are motivated by market forces. The rate of invention increased significantly when the first property rights for inventions were introduced. When a country does not have a patent system, then inventors focus on technologies that they can keep a trade secret. See Switzerland in the mid 1800s.

  35. … but individual initiative has to be prime mover for society and its institutions to thrive

    Ron Hilton, let me guess, you “did build that”, all of it, and all on your own! Bwahaha.

  36. Bobby,

    Once again, you prove you do not understand physics or patents. See quote below
    “Well, by a strict interpretation, only a handful of physicists have ownership of anything, and they don’t own much”.
    No one including physicists have created something from nothing. Those people who created new chemical elements used existing atomic elements (protons, neutrons, electrons) and all of these were created from photons. NOTHING is created out of thin air – that is not the definition of invention or creation. An invention is a new combination of elements that solves an objective problem. Creation includes both invention and reproduction (incorrectly called production by economists). If I plant wheat on my land, tend it, harvest it, mill it, then I am the creator of that flour. But I am not the inventor of the milling machine or the thresher. Definitions matter and you have not thought about what these words really mean. This leads to obvious errors, such as the one i quoted above.

    You are also incorrect that the French were the only ones to consider patents a Natural Right. First of all the US Constitution talks about the RIGHTS of inventors. When the founders used the word right they meant Natural Right. Second, you have ignored the early jurisprudence in the US on this point. For more information see Adam Mossoff’s paper on point. Third, patents fit Locke’s framework on how property comes to exist. It is debatable that the leaders of the French Revolution believed in Natural Rights. If you read what they wrote closely, all so called rights they defined were limited by the will of the people. That is not a natural right, it is government granted concession.

  37. No one including physicists have created something from nothing. Those people who created new chemical elements used existing atomic elements (protons, neutrons, electrons) and all of these were created from photons.

    Energy has been turned into matter before, which means that matter was created in a vacuum. I can understand an interpretation that would say that this is still transformation instead of creation, but I feel like being generous to those scientists since they did manage to obtain matter without existing matter, as did this paper reporting on the subject.
    http://www.hep.princeton.edu/~mcdonald/e144/nytimes.html

    You are also incorrect that the French were the only ones to consider patents a Natural Right.

    I didn’t say that the French were the only ones to consider patents a natural right. I said that it was a notion of French origin. I will acknowledge that some Brits or maybe even other nationalities have perhaps espoused such notions before the French established such a system (although that would be incredibly difficult to track, and this silly idea may date back much further for all we know), but the institutions of the UK and the US were both utilitarian in nature, so the French were the first I’m aware of to institutionally have patents be an inventor’s natural right. The key to me, however, wasn’t to take a jab at the French for their misguided idea, but to state that it is not in line with the US’s tradition.

    First of all the US Constitution talks about the RIGHTS of inventors. When the founders used the word right they meant Natural Right.

    No they don’t. Natural rights are inalienable, but the Constitution doesn’t demand that inventors ever be able to have them, and it specifically says that they must be alienated from the inventors at some point. The constitution demands that they cannot be treated as natural rights. The founders were very concerned with protecting natural rights, but that doesn’t mean they didn’t have a conception of the idea of constitutional or statutory rights either.

    Second, you have ignored the early jurisprudence in the US on this point. For more information see Adam Mossoff’s paper on point.

    I think I may have read this paper, but I think the point was that judges sometimes treated patents like property and sometimes didn’t, and Mossoff felt like ignoring the cases to the contrary for no particular reason (if that isn’t the one, I would ask that you direct me to it). Sometimes acting like property, however, doesn’t mean it’s a natural right.

    Third, patents fit Locke’s framework on how property comes to exist.

    It can be with some interpretations, although I seem to recall some good arguments against applying that logic as well. The physical and the abstract work quite differently, after all, making direct comparisons often very difficult. For example, one might create a market via one’s labor, but we don’t make the market the property of the first entrant Even if one contends that Lockean philosophy supports it, that doesn’t mean Locke was correct on this particular matter.

  38. I absolutely agree that patent protection increases technological progress. I’m just speculating that it’s more a function of bringing latent innovation to commercial frution than providing a direct incentive to innovate. It takes both engineering inventiveness and business acumen to produce technological progress. But to find both characteristics in the same individual is usually a freak of nature :). I come from an engineering background, and although of necessity have had to learn some of the business side of entreprenuership, I freely admit that I cannot “build it” all by myself. A good management team is critical.

  39. @step back:
    “God bless you for popping out of the wall works to proclaim that you “would have” invented “slide to unlock” IF ONLY someone had sat you down and fully described THE PROBLEM to you.”

    In fact I’m not just claiming that *I* would have, if given that problem to solve, I’m claiming that ANY halfway competent software developer or UX designer would have. Patents are expressly not supposed to be issued in such a case — in legal terms, this patent *should* have failed the obviousness test, assuming it was being applied properly.

  40. @Ron Hilton:
    “They rail against the patent system when in fact it could be their best friend and protector.”

    :-D Give us some credit!

    The objections of software developers to the patent system are both well-documented and well-reasoned. Patents aren’t necessary to stimulate innovation in our field, and in many respects they are an active hindrance.

    One of my favourite examples is that of arithmetic coding, a (clever) form of data compression that one could reasonably argue in favour of patenting. You can read about it here:

    http://en.wikipedia.org/wiki/Arithmetic_coding

    There are two particularly interesting things about arithmetic coding. It produces significantly better performance than Huffman coding (a related technique), and, as a result, was specified as an option in the widely-used JPEG standard. The other interesting thing is that, unlike Huffman coding, it was patented.

    The result of the patent? Well, plenty of people knew about the technique, but put simply, nobody used it. Most implementations of JPEG encoding/decoding don’t even support arithmetic encoding. And it isn’t as if IBM was especially awkward about patents — my understanding is that you could pay to license it if you wanted.

    In recent years, the patents on arithmetic coding have (thankfully) lapsed, and various pieces of software are now starting to use the technique. The patents have, in this case, had the effect of putting a 25-year block on its use; is that really desirable?

    There are some additional features of arithmetic coding that are interesting to mention in this context. First, Huffman coding, which has never been patented and was known about for some time before arithmetic coding, is provably a particular special case of arithmetic coding. Second, it’s a pure algorithm; essentially just a piece of mathematics. You can do it yourself, in your head, or (more likely) with paper and a pencil.

    This leads to a few questions you may wish to consider:

    1. Does the patent on arithmetic coding cover Huffman coding? If not, why not? Is it reasonable for a patent to cover a more general case of something already known about (e.g. should it be possible to hold a patent on “the screw”, having previously known about only slot-headed screws)?

    2. If you had used arithmetic coding in your head, or on paper, while the patents were still in-force, would you have infringed the patent? Is that reasonable?

    3. Mathematics is in most legal codes expressly not something that can be given patent protection. The justification for patenting mathematics and flying in the face of the intentions of legislators is what, exactly?

    I should say that, in my opinion, the arithmetic coding patents are fairly defensible on the grounds that it is actually quite a clever idea and probably does constitute genuinely inventive work. Nevertheless, I think the historical record shows quite clearly what the effect of patenting it has been; even today, after the patents have expired, it’s still difficult to use arithmetic coding to compress your JPEG images, even assuming your software supports it, because other peoples’ software may very well not. Desirable? I think not.

  41. I think the historical record shows quite clearly …

    Dear Alastair at comment #40

    Hopefully, one day, you will grow in understanding and appreciation and come to realize that each of us, if we now see farther, we do so only because we stand on the shoulders of giants.

    We didn’t “build that”.

    They did.

    Some of them were gracious enough to give away their work product totally for free as open source and some asked for fair compensation for all the work they put into arriving at their respective contributions. Nothing wrong with that. Everyone else in every other field of endeavor wants compensation too.

    If you personally choose to give away your work product as free-ware, open source, etc. then God bless you. Thank you. But you have no right to demand of other people that they to do the same.

    The truth is that the general public is nothing but a bunch of freebie-grabbing ingrates. Not because they are bad people, but simply because they don’t understand and they cannot or don’t care to understand.

    That is why we need laws that protect the easily copied intellectual work products. That is why we need copyrights, patents and others of the IP protection laws.

  42. The obviousness test is not met by hindsight-aided “common sense”. It requires a combination of pre-existing prior-art references, that together disclose each and every element of the claim. It is the combination of those elements that must be shown to be obvious. If any claim element is novel (not disclosed in a prior reference), no matter how “logical” it may seem to someone in hindsight, the obviousness test is not applicable. Many inventions and discoveries seem obvious in hindsight. Once the solution to a problem is known, it is very difficult to objectively evaluate whether or not it should have been obvious. It becomes very subjective at that point.

  43. Taking the assertions regarding arithmetic and Hoffman encoding at face value, I would make several observations:

    All engineering is mathematically based. Math is language of science and engineering. The mere presence of mathematical aspects of an invention does not disqualify it as patentable subject matter, as long as it is claimed in the context of a practical application in the physical world. Only “abstract ideas” are not patentable.

    The species anticipates the genus. If Hoffman encoding is in fact a species of arithmetic encoding, meaning that the former provides a specific example of each and every general element of the latter, then the latter should not have been patentable, and could have been challenged and invalidated. However if the latter possesses at least one element, either general or specific, that is not anticipated by the former, then that one novel aspect makes the patented claim valid.

    Even though a patented solution may appear more “elegant” than current technology, if industry declines to license it and adopt it then in a sense the free market has decided that it was not worth the cost. On the other hand, if the patent holder deliberately withheld the improvement by refusing to license it on reasonable and non-discriminatory terms, in order to prop up their investment in the legacy technology, then there may have been cause for an antitrust action. That was precisely my original point above.

  44. Bobby,

    That is why it is call conservation of Energy and matter. You are not being generous, you are ignoring that it is impossible to create something from nothing, which leads to nonsense about what an invention is.

    Yes, the Constitution does. If you read the Declaration of Independence the only job of Government is protect our rights. The founders did not speak of non-natural rights. In fact, the whole concept of non-natural rights is nonsense.

  45. I am very time-jealous – perhaps this weekend will see a respite.

    It’s a good thing Stan patented the automated Kool-Aid business method…

  46. Blind Dogma,

    There I was expecting you to be dispensing Kool-Aid in response to comments on Raymond article
    (http://www.ipwatchdog.com/2012/08/28/business-methods-and-software-are-still-patentable/ ).

  47. That is why it is call conservation of Energy and matter. You are not being generous, you are ignoring that it is impossible to create something from nothing, which leads to nonsense about what an invention is.

    First of all, that part was a jest. Secondly, Princeton apparently find that acceptable. Energy isn’t exactly something. I addressed the issue in regards to physical property from the very start with a fence and a doghouse. You’ve not addressed that issue, which shows that creation is not the origin of physical property.

    Yes, the Constitution does. If you read the Declaration of Independence the only job of Government is protect our rights. The founders did not speak of non-natural rights. In fact, the whole concept of non-natural rights is nonsense.

    That’s funny, given that Thomas Jefferson wrote the Declaration of Independence, and you were just saying that he’s wrong. It’s also a rather narrow reading of the document. As for the claim that the founders did not speak of natural rights, here’s Thomas Jefferson specifically speaking on patents: Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.

    That’s talking about a right, but not one which is inalienable. Perhaps you should brush up onhttp://en.wikipedia.org/wiki/Natural_and_legal_rights

  48. Step back

    “On any given day you might decide to strike it out on your own with an Aha you just had.”

    That thought has never been far from my mind (the first IT start-up I got involved with, was back in the late 1970’s, which developed an application for the Apple II) – hence one of many reasons why I’ve taken the trouble to hang around and better aquaint myself with the US patent system.

    What I find particularly concerning, isn’t so much the Aha’s upon which you can found a business so much as all those little Aha’s and design decisions that occur (and get forgotten) as you expand on the larger Aha. As it seems that it can be all too easy to unwittingly include some feature that infringes a.n.other’s patent, or overlook something that becomes a market defining feature (love it or hate it, ‘slide-to-unlock’ is a feature Apple made cool and desireable) that others copy…

  49. Bobby-

    If you knew anything significant about Physics *as we know it*, you would understand that us mere mortal humans have only a slight grasp of what might be possible according to our pet theories of physics at whatever time you happen to look at them. According to the latest theories present on Earth, it IS possible to create something from Nothing, as in the Big Bang theory, which has yet to be disproven as far as I am aware.

    Although Thomas Jefferson was arguably a very wise man, who has benefited us all greatly to this very day, he was only a single man among hundreds who helped craft the Constitution of the United States of America. That is the nature of the American experiment, where a few cannot steal the rights of others, which you have always taken great pains and dozens of pages of comments to try to assert is not fair. Patent rights. Property rights. Why not property rights? If somebody tries to come onto my property and move into a house *I* built, shouldn’t I be allowed to demand that they leave immediately?

    I have a breaking bulletin for you Bobby, in that probably Very Few that attend here and care about IP even bother to try to follow your wandering *logic* processes to arrive at whatever happens to please you, instead of what is really true out there in the real world. Did you ever see the Lord of the Rings episode where the Ents came by and caused the evil wizard’s tower to collapse into ignominy? It seems as if his tower was built upon a foundation resting on the underground excavations of the Orcs below, and when the Ents diverted a river to flood the iron foundries below, it caused the caves to collapse, taking the tower with it.

    Turning matter into energy is dirt simple, as in fission or fusion reactions, or matter/antimatter reactions, but turning energy directly into matter is not possible here on Earth just yet as far as I am aware.

  50. BD-

    Actually I am trying mostly to keep things on the QT, as in strict Trade Secrets, outside of yourself of course. Business method patents make me a bit nervous these days, so I elected to file a means plus function sort of thing, which is fraught with ways to get it wrong, but works very nicely if you can get it through the examination.

    Non-publication request of course, just to keep them guessing for a few more years, while we develop the marketing side of things. Kind of a no-brainer as regards marketing, the way things are developing lately. Just imagine when China and India finally get on board the new world order of IP rights!

    There IS a way to track descriptive adjectives for various individuals, and then *prescribe* certain flavors, but perhaps the details of that are best left between the two of us personally.

    Best wishes,
    Stan~

  51. Dear Stan,

    I respectfully disagree that we do not convert energy into matter directly. In the case of pair production of electron positron pair, they can be create directly gamma rays. Now you may argue the gamma rays are made by slamming particles together, but still the gamma ray is converted into matter. see the explanation below

    Pair production is the “making” of a positron and an electron out of a high energy gamma ray. Both pair production and beta plus nuclear decay occur naturally, so the positron can be said to occur in nature. Remember that the positron is an antiparticle – it’s antimatter – and it will, after appearing, slow down via scattering and will eventually combine with an electron in mutual annihilation. The positron has a short mean lifetime and a short mean path of travel. They usually don’t last long after they’re created. But lets look at the creation of the particle pair.

    The energy of the photon that creates the electron pair must have must meet a minimum threshold. And the threshold energy necessary for this even to be possible is 1.022 MeV. That’s a lot of energy, and all that energy will be converted into mass – the rest mass of the electron and the rest mass of the positron. Higher energy gamma rays might still initiate pair production, but the extra energy would be accounted for in the kinetic energies of the pair of particles produced.

    A gamma ray of sufficient energy passes near an atomic nucleus and the pair is produced. Note that pair production is not the spontaneous “option” that high energy gamma rays have. The photons must pass close by an atomic nucleus for there to be a probability that pair production will occur. This is because momentum must be conserved, and the “assisting” nucleus will handle this chore.

    Read more: http://wiki.answers.com/Q/How_is_a_positron_produced#ixzz25tNSOij8

  52. Stan,

    I also disagree that the big bang shows that something was created from nothing. While there are no definitive answers out there, many physicists have speculated that the big bang is a black hole or a white hole. See below. If that is the case then the big bang was created out of something that already existed.

    Nikodem Poplawski, a theoretical physicist at Indiana University, wrote a guest column for Phys.org arguing that in each black hole lies a universe. The theory is not a new one, but for those who aren’t physics nerds (such as myself), Poplawski lays the science out for the layperson in an easy and interesting way. http://www.deathandtaxesmag.com/183302/black-holes-might-create-universes-says-physicist/

  53. Gene-

    It looks like your spam filter ate my homework, perhaps because I included a link to your invisibility cloaking article.

    Stan~

  54. Stephen Foley: Welcome to the age of sub-prime patents – or mutually assured litigation http://t.co/e5xrt0xm
    Prophetic reading, the same old story

  55. Please, let me also quote this extended document’s conclusions:
    http://dare.uva.nl/document/155915
    The patentability of computer programs
    Discussion of European-level legislation in the field of patents for software

    “Conclusive evidence supporting a liberalisation of existing European patent law and practice in respect of software and business method patents, on the basis of the U.S. experience, does not exist. The liberalisation of U.S. patent law as a result of the 1998 State Street decision, that has opened up the domain of patents to all sorts of business method claims, does appear to have lead to considerable administrative problems. But it would be too early to draw conclusions with regard to longer term economic effects.
    While some claim that software is something radically new, the current debate over software patentability is actually as old as the patent system itself. Of course, there are R&D intensive industries that could hardly function without patents, such as the pharmaceuticals industry. However, there are many other sectors of industry where the contribution of patents is questionable. Unless this fundamental lack of knowledge is addressed in a more structured manner, any proposal to optimise the patent system in respect of software-related inventions is based on nothing more than wild guesses or wishful thinking.”

  56. Johnny,

    Every study that has looked at the history of software and patents has shown that extending the protection of software with patents has resulted in increased investment in patents, more software products, and more software developer employed. A patent does not just protect the R&D investment, but the cost of introducing a new product, which is often considerably more than the R&D cost. Without patents, inventors are timid and create me-too products or incremental advances.

  57. Excuse me, just consider some other concerns and opinions…

    GNU org
    http://www.gnu.org/philosophy/savingeurope.html
    “Saving Europe from Software Patents”

    The Guardian
    european-unitary-patent-software-warning
    “Beware: Europe’s ‘unitary patent’ could mean unlimited software patents”

    EUPAT Working Group
    http://eupat.ffii.org/int/intro/
    “Software Patents in Europe”

    Thank you
    Kind regards

  58. Johnny-

    Anti-patent and anti-software patent positions have been considered. They have been thoroughly rejected as being nonsense.

    -Gene

  59. Johnny-

    I write separately to encourage you to actually engage in the debate yourself. You seem to only provide links and quotations from others. Those others are more than welcome to join the debate here. I’m all to happy to prove them wrong in open and vigorous debate. It is, however, impossible to debate someone who is not present and your constant deferring to others as authority is not at all helpful. Rather than parrot the words of others please engage yourself.

    -Gene

  60. I would consider 3 points of view: 1 sw development 2 market, 3 analysis.
    Starting from the latter, deferring to others is quite common:
    I can find here Merriam-Webster’s defintion, Cooney’s article, citing to the book “The Invisible Edge” of Mark Blaxill and Ralph Eckardt, and so on…
    I agree with you: “A patent does not just protect the R&D investment, but the cost of introducing a new product, which is often considerably more than the R&D cost”. But this is what I consider the “market” (and not the patent system) should do…
    I would appreciate that a patent system expert recognizes the limits of the patent system to the same extent as a functional points expert (just to mention IT people) honestly admits that FP theory can not explain and correctly estimate a batch procedure (it is only an example to say that theoretical models con not apply to some real world situations).
    Finally I think that, if one is involved in the development of custom software, the contract terms should be the main means of protection.
    My two cents :-)

  61. Johnny-

    You might do well to remember that a contract is only as good as the honesty of the other party. Sort of like the cost of doing business, where you make informed decisions, in the absence of more objective criterion. Like valid patents.

  62. Concerns, are not facts.

  63. Johnny-

    You say: “if one is involved in the development of custom software, the contract terms should be the main means of protection.”

    That is, of course, what happens today because the overwhelming majority of those writing “custom software” naively choose not to pursue patent protection. Indeed, it is humorous to even call it “custom software” because all they do is cut and paste from the work of others, which is hardly innovative to begin with. Such cut and paste copying couldn’t be protected by patent or even copyrights, so contracts are all those folks can resort to anyway.

    What your comment misses, not surprisingly, is that there is a lot more to the software world than just those who write “custom software.” The folks doing this type of work are programmers, not inventors. They do not innovate, but rather code what others have invented. So it is perfectly natural to not want to patent the work of the programmer. You can’t do that anyway in the U.S. What is protected is the mental activity associated with conceiving the innovation, which is not something that programmers engage in.

    -Gene

  64. Gene,
    I’m going to take issue with you on SW folk not being inventors.

    IMHO everyone is an inventor.

    Maybe not for all they do.
    Maybe not 1st inventor to publicize their act, but nonetheless inventive of something even if it may not be patentable.

    Some of that inventing falls below the obviousness bar and some of it above.

    It is at that boundary line that we patent prosecutors fight our daily battles.

  65. Gene,
    sometimes I work in the US for some US clients, but I’m usually in Europe. I have years of experience in a big company that owns many patents (oh… unbelievable? but sorry if I don’t want to be too specific … for my privacy). I’m in touch with many IT professionals from the top IT sw vendors and consultants. Our IT choices can influence even international experts. But I like to have my personal ideas and I am very self conscious of my “mental activity”…
    I have a deep understanding of the development patterns and principles: it is not something that patent experts engage in… :)

  66. Step Back-

    An interesting way of looking at *inventing* that reminds me of what we discussed at great length on the InventNet forum several years ago. It is quite possible to actually *invent* things in a personal sense, since I had never heard of such concepts before, but I had in fact been preceded by another innovator in most cases, so my concepts failed in the broader understanding of the term invention, since they were at least not new and novel, and therefore were undeserving of a granted patent.

    If I had thought of it just a few years earlier, it would have been a true invention, but I didn’t in many cases. In the case of SW, it is very difficult to find prior art since things are developing so quickly, and much or most of the prior art is undocumented for various reasons. In either case, the actions are the same, but the outcomes are much different. It makes a very good case for becoming educated and expert in your field, so that you don’t waste your time and resources re-inventing the wheel, so to speak.

  67. Johnny-

    Your lack of understanding is breathtaking. You provide no information about yourself, your thoughts, your opinions and now you want us to believe that you are some top European IT expert. That is comical.

    All you can say is that patent professionals don’t consider important issues. Then you cite to others who you believe are experts, seemingly incapable of putting forward a coherent thought that can be discussed and debunked.

    I appreciate you continually coming back to IPWatchdog.com, but if you cannot actually contribute to the discussion your comments are nothing more than mindless chatter presented by someone masquerading as an expert.

    -Gene

  68. You are very arrogant. You can believe what you want. I don’t need to send you my business card to contribute to the discussion. Some patent professionals do consider important issues, some others don’t.

  69. Some discussing things here choose to remain anonymous, for very good reasons that I can certainly understand. They almost Always have valuable and substantive things to contribute, and they are nearly always polite, to a fault sometimes. To call Gene arrogant seems very rude to me, given all that he is trying to do for us. Arm-waving rhetoric will not work here, and for very good reasons.

    The issues are already complicated enough, without having to listen to the obfuscation of the relevant points because you don’t seem to understand what you are talking/writing about. Call me a lightning rod if you will, but a second opinion seemed to be in order. http://en.wikipedia.org/wiki/Lockheed_P-38_Lightning

  70. Stan,

    The thing about “inventing” is that, at the time of invention it’s not always clear if the invention is a big thing or just a small inconsequential thing.

    You find out many years later.

    Visicalc (a.k.a. spreadsheets) was a big thing (a killer app).
    Facebook was a big thing (for its time)
    Other software advances may or may not be a big thing depending on their impact on society.

    Some software advances are incredibly simple in hindsight (e.g. Amazon 1-click)
    But for some reason no one else “sees it” beforehand
    We’re all wise mules after the fact by saying, “Gee, I could have thought of that.”

    I suspect Johnny-come-lately is the latter kind of person.

    I gave him some empty lines up top to fill in with his obvious-to-him, next big thing.
    They still sit there, full of promise but empty nonetheless. ;-)

  71. Writing random numbers is an obvious and stupid thing, nonetheless I can not guess the next. These are not my words:
    ” It is, however, beyond doubt that many software creators still seeking to protect the functionality of their programs will now look to patent law for protection. Not only will this lead to a scramble for more, wider and increasingly vague software patents, but also perpetuate the global chaos that reigns in software patent litigation and its stifling grip on innovation.”. Now my stupid words, you know, I don’t understand.
    Remember the great Porter’s theory of business strategy: the competitive advantage and the other forces around the market. Patents acts like entrance barriers, that can be acceptable when they do not create a sort of monopoly. If you can copy me, I have not a distinctive competence, a competitive advantage. In case of software you have to consider also the difference from the source and the product itself and that reverse engineering can hardly add a feature. Please, if you don’t appreciate me, don’t mention the stupid-johnny… I won’t come back

  72. Don’t just get angry because others disagree with you now and then and leave in some sort of snit. Most of us are here to learn from one another, as the issues are very complex and convoluted in some respects. Even if I disagree with you very avidly, that does not necessarily mean that I may not be able to learn something important in the process.

    Much like many other software type of *inventors*, you seem to be way too sensitive about what you are *inventing*, for perhaps obvious reasons. Good luck in either event.

    Stan~

  73. SB-

    Sometimes it is obvious that it is really new, but other times it is more inscrutable. Patent and market searches to discover what it is possible to claim are needed, which is where competent practitioners are of very great value. I can do my own searches, but they need informed opinions, and a double-check before I spend thousands jousting at what very well may turn out to a useless quest. Don Quixote, and somewhat like that.

    Best regards,
    Stan~

  74. Stan

    re: #66
    ALL things are initially “invented” in the personal sense; Those who get credited with making “true inventions” are those who share their work either through publicity or by being the first to file a patent application.

    “If I had thought of it just a few years earlier, it would have been a true invention.”
    Understand the sentiments behind this statement, however one of my burdens is slightly different – I have designs etc. for an interactive ‘talk’ service for mobile users complete with multi-modal (screen/touch/audio) user device integration dating from 2001. The release of (the currently more limited – in my opinion) Siri in 2010, vindicated the idea’s I had developed and demonstrated what a small startup (Siri Inc.) could achieved with the backing of a significant player (in combination with a number of key developments in natural language processing and mature consumer mobile application services). By being first to market all other (consumer-oriented) talk services will be seen and judged as copy’s (‘copycat’s even ?), even though the ideas have been knocking around for years…
    Just one the problems of working in an area where your designs often require significant investment to be realised (I suspect Apple invested over $100M in product/service development just to get Siri to market) …

    I suspect Stan that you can cite similar experiences from your area’sof invention.

    Roland

  75. Johnny-
    “if one is involved in the development of custom software, the contract terms should be the main means of protection.”
    Protection from what?

    Yes the contract terms for bespoke development should lay out clearly who owns what and what they can do with it and what idemnities and warranties come with the completed product.

    For a large number of software developers, the contract is their T&C’s of employment, where it is typical to hand over all rights to what is produced to the employer for them to do as they please with. Hence in most cases if a developer implement a “slide-to-unlock” feature in a product, it is the employer who takes the heat in court, if Apple et al come calling.

    One of the changes I instigated in a European computer systems vendor who was moving into the integration space back in the early 90’s was to change the normal T&C’s concerning the IPR of bespoke developments. Instead of effectively handing all ownership across to the client, we only handed across the rights to use and modify the software we delivered to them. This enabled us to treat all such developments (designs and software) as assets and thus modify and resell as we saw fit. If the customer wanted exclusive ownership then in the new world (remember in the early 90’s hardware became a commodity) this carried a price. Aside: this was the easy part, as the sales managers got it, changing in-house attitudes to development was much much harder…

    However, none of this gives any come back when a third-party picks up the idea’s implemented in your bespoke software – for example a competent software developer shouldn’t need to see the code (and probably only needs to have it described to them) to be able to replicate “slide-to-unlock” as implemented on Apple devices, on a different device platform. Whether you agree with them or not (or the software ‘inventions’ that seem to get patent protection), this is something that software patents can assist with.

  76. @step back (comment #41):
    “Hopefully, one day, you will grow in understanding and appreciation and come to realize that each of us, if we now see farther, we do so only because we stand on the shoulders of giants…”

    That’s spectacularly patronising. This has NOTHING to do with Open Source or Free Software (of which I am not, I might add, a proponent), though the Open Source and Free Software movements certainly have their own additional reasons for objecting to software patents.

    Further, we software developers are only too aware that we “stand on the shoulders of giants”. More so, I expect, than any of the people who use our creations, most of whom have probably never heard of George Boole, Alan Turing, Alonzo Church, John Backus, Peter Naur or indeed any of the hundreds of others worth mentioning.

  77. Roland,
    “However, none of this gives any come back when a third-party picks up the idea’s implemented in your bespoke software …”
    As teached by Gene Quinn:
    “Unfortunately, despite what you may have heard from late night television, satellite radio commercials or snake oil salesmen, there is no effective way to protect an idea. Copyrights protect expression and patents protects inventions, and neither protect ideas. In both cases the idea is the first critical step, but without some identifiable embodiment of the idea there can be no intellectual property protection obtained and no exclusive rights will flow unto you.”
    Btw, I like the expression “snake oil salesmen”… ))

    “… for example a competent software developer shouldn’t need to see the code (and probably only needs to have it described to them) to be able to replicate “slide-to-unlock” as implemented on Apple devices, on a different device platform”
    He *needs* the code of that different platform. For instance a UK judge ruled that Apple’s slide-to-unlock feature was an “obvious” development in the light of a similar function on an earlier HTC handset.

  78. Johnny,

    Nice to see the quote from Gene, if you’ve read Gene’s articles on patents, you’ll know he also describes a way to patent an idea …

    I used the “slide-to-unlock” example to illustrate my point, as it is well known and fitted my requirement, namely: a feature/idea that is easy for someone (non-IT) to grasp and to describe to someone else (in IT) who hadn’t seen it, and that requires minimal code to implement with a very high probability of the new code duplicating the unseen original (getting aesthetically pleasing screen graphics might take a little longer…).

    Whilst I agree there are differing opinions on the correctness of the patents being granted for Apple’s embodiment of the slide-to-unlock idea/feature, the validity of the patent grants (or software patents in general) wasn’t the point I was making. The question is whether a third-party having looked at an Apple iOS device and describing the “slide-to-unlock” feature to a colleague, who then implements what has been described to them, is copying an idea or an implementation of an idea (ie. a feature)? On this last point I suspect some of the more learn’ed around here may be able to offer some insight.

  79. alastair,

    You forgot to mention Charles Babbage and Lady Ada Lovelace.
    But then again those people were too close to the inseparability of hardware and software to make mention of them a comfortable one for those who stick steadfastly to the notion that software lives on planet far far away and distant from where the hardware lives. Cheers. :-)

  80. Roland-

    Concerning your #74 comment, yes I have encountered a few situations where I was seemingly the true inventor as far as I could discover after the fact. Most of the time, I have several different concepts to look into, but only a limited amount of time and revenue to devote to any particular one. I am thus forced to make a business sort of decision as regards the possible likelihood of success for each, given what I know about the particular field, what has gone before in terms of existing IP and what is available on the market.

    I think of it sort of like IP triage, where you take what you Think are the most pressing ones first, and hope that you have made the right decisions in the process. It is somewhat like gambling in a way, with your time and money, where knowing when to walk away is the better part of valor and/or a smart business decision.

    One example in my past is the idea of using lasers to indicate where cutting implements will cut before you make the cut. I think I came up with it about 15 years ago, inspired by laser gun *sights* or indicators, if you will. I decided that the concept might be problematic to get a patent awarded for it, and the market for it seemed to be pretty limited, so I put it on the back burner and pursued other things that seemed more lucrative at the time.

    Then about 10 years ago, woodworking chop/mitre saws with laser guides started appearing everywhere all of a sudden, that quickly became pretty popular it seemed. I am not sure if anyone got a patent awarded, but it really doesn’t matter now anyways, because others acted upon the idea, where I did not, and more power to them. Just think of how much wasted lumber they saved, by not accidentally cutting expensive boards that were unacceptably too short!

  81. step back (#79)

    What I found most telling was the omission of Donald Knuth and Edsger Dijkstra – two names that would come straight to mind (I’ll forgive him CAR Hoare, as programming calculus was and is a bit esoteric), particularly as I regularly see their books on the close-to-hand shelves of software engineers (apologies to Gene in advance for using these two words together :) ).

  82. @step back:
    “You forgot to mention Charles Babbage and Lady Ada Lovelace.
    But then again those people were too close to the inseparability of hardware and software to make mention of them a comfortable one for those who stick steadfastly to the notion that software lives on planet far far away and distant from where the hardware lives.”

    I didn’t “forget” to mention anyone; I just felt that there was merit in a short list of a few influential people that a non-software-developer was unlikely to have heard of.

    As for the “inseparability” argument, that doesn’t seem relevant to any of my previous points, but it is not, in any event, a good argument, notably because it is not true. I doubt very much that you have read it, but Ada Lovelace’s “Note G” quite clearly describes a mathematical algorithm, entirely independent from the designs of Babbage’s Analytical Engine; it so happens to be given in a form that would, if the Analytical Engine had ever been built, be convenient to use with that device, but you could follow the algorithm she gives using a pencil and paper if you so desired.

    @Roland:
    “What I found most telling was the omission of Donald Knuth and Edsger Dijkstra”

    Telling how? I didn’t mention John McCarthy or Guy Steele either. Or Niklaus Wirth. Or Alan Kay. That doesn’t make any of them any less notable. In fact, I seem to recall writing “any of the hundreds of others worth mentioning” at the end of the sentence.

    However, it would be boring to list every single notable computer scientist; there are so many.

  83. @Alastair,
    You list many worthy Computer Scientists, whilst a few contributed to the development of programming languages, none (excepting Niklaus Wirth) made any real contribution to software engineering and the discipline of programming. As a self confessed practising software developer, I would of expected from the context in which you presented your list of notables, for it to contain names of those who made sustantive difference to the way programming is practised today.

  84. @alastair (re comment #82)

    Actually, the oft mentioned “pen and paper” is hardware.
    They are used for storing and retrieving symbols as well as spatially organizing the symbols.

    The fact that many judges and legal scholars are too dim witted to understand that doesn’t make it any the less true.

    The human brain is often incapable of accurately storing and recalling large amounts of data or spatially organizing large amounts of data.

    Various hardware devices have been invented over the years to overcome the deficiencies of the biological brain. “Pen and paper” is one example. The abacus is another. Babbage’s mechanical difference machine is yet another. These have been eclipsed by the electronic machines. They are all machines nonetheless.

    If a method uses a machine, then it uses a machine.
    It cannot be said to be purely abstract.

  85. @Roland:
    I’m a little surprised (not to mention saddened) that you think that none of the people I listed “made any real contribution to software engineering and the discipline of programming”. I certainly don’t agree with that assessment, nor, I’m sure, would many others.

  86. @alastair

    I take a position 180 degrees from that of Roland

    Hundreds of thousands of people made significant contributions to the practice of real life, machine-implemented software and quite a few of those were patent worthy even if the inventors/ contributors chose not to patent it or didn’t know about the patent option.

  87. @ alastair 79

    You mention the following individuals: “George Boole, Alan Turing, Alonzo Church, John Backus, Peter Naur…”

    You then @85 say that these people made real contributions to software engineering.

    Just because you say something doesn’t actually make it true. Boole, Turing and Church were all mathematicians. Backus and Naur were pioneers in developing syntax for programming languages. None of these activities relate to software engineering.

    Your problem is that you think software is math (which is simply false) and, therefore, any mathematician has contributed to software engineering. You similarly seem to believe that the magic of software is in the code, which is similarly ridiculous. Code is merely the translation of a system design into a language that can be read by a machine. There is no magic to code at all. Code isn’t even patentable. It is copyrightable because it is the expression of an innovation, not the innovation itself.

    Engineering is about problem solving and design. That is where the innovation resides. To argue otherwise is simply to be ignorant. Is it innovative to translate an article from one language to another? No. So why should it then be innovative to translate a system design into one programming language or another?

    Is a particular language spoken in a region of the world innovative? No. So why then is the development of syntax for programming languages innovative? These computer scientists you mentioned did great work, but what they defined was the rules of a language. Once those rules are set it is left to engineers and other innovators to create previously unknown things and articulate those things in the language.

    You can complain all you want, but mathematicians and computer scientists do not contribute to the field of software engineering. Their contributions are significant and meaningful on a variety of levels, but conflating what they have done with what engineers do is simply to overstate and ignore truths that should be self evident.

    -Gene

  88. Innovation pertains primarily to novelty, which is only one of the criteria for patentability. I believe that the work of scientists and mathematicians can indeed be innovative, because it involves visualizing beyond the current horizon of knowledge to form a hypothesis, followed by experimentation (or logical reasoning in the case of pure mathematics) to validate the hypothesis. However patentability also requires utility, which is the practical application of knowledge. That is why only engineering, including software engineering, is the primarily domain for patentable activity.

  89. Ask Microsfot about patented XML handling algorithms… ;-)
    You know, also the final l in html stands for language…

  90. Your problem is that you think software is math (which is simply false) and, therefore, any mathematician has contributed to software engineering.

    Gene:

    Can you prove that software isn’t math? Because if you cannot, your statement falls into the same black hole. Why should we believe you without proof?

    Hundreds of thousands of people made significant contributions to the practice of real life, machine-implemented software and quite a few of those were patent worthy even if the inventors/ contributors chose not to patent it or didn’t know about the patent option.

    StepBack:

    Just because someone’s work has contributed to a field, does not make the work patentable. It could be obvious, or pre-existing. And quite frankly most patents I’ve read are both obvious, and pre-existing.

    That is why only engineering, including software engineering, is the primarily domain for patentable activity.

    Ron,

    Can you prove that patents for software, or hardware for that matter should be allowable? Yes, I know that certain court cases appear to allow for them, but other court cases don’t.

    And quite frankly I’d like to hear your argument for and against, as compared to a list of court cases. For that matter I’d like to ask you to consider this:

    Actually, the oft mentioned “pen and paper” is hardware. They are used for storing and retrieving symbols as well as spatially organizing the symbols.

    From that statement, I would expect that anything which had previously been reduced to pen and paper, would not be patentable on a computer, as it would be obvious that a computer could be used to speed up the operation.

    That after all is what computers are for.

    Another issue is that patents can only be issued in the United States if they are a net benefit to the country. Check the Constitution. How many patents can truly be considered a net benefit to the country? The Constitution may make several trade treaties that the United States has signed illegal.

    It’s all very interesting. I suspect that some of this is going to hit the Supreme Court at some point, and all hell is going to break loose.

    Wayne

  91. Computer software, like any other engineering discipline, uses math extensively but it is not math per se. However the problem with software is that it sometimes resembles math, especially when written in high level language. For example A=A+1 looks like an equation, but it isn’t. As a mathematical equation it would be false, but as a software statement it means “increment the value in A by 1″ in which case it is simply a step in a computer-implemented method, and therefore patent-eligible subject matter. Regarding patentability in general, why would anything that is created by man, is useful, and that does not already occur in nature or in previous man-made technology, not be patentable? That is where the burden of proof properly lies in this question. What would be the justification in denying patent protection to computer software or hardware? How are they less deserving of IP protection than any other technology engineered by man?

  92. Software is not math any more than physics is math – what a bunch of nonsense. Software is a way to wire an electronic circuit. Software patents are patents on electronic circuits. It is amazing that someone could call themselves a computer scientist and not understand this simple fact.

  93. The Constitution does not say any such thing. It talks about protecting the RIGHTS of INVENTORS. The Preamble is not limiting, just as it is not limiting in patent claim. When the founders used the word RIGHT they meant a natural right. The purpose of government is to protect those rights – see the Declaration of Independence.

    The absurdity of your position is further proven by the fact that no one, including you, suggests that copyrights should only apply to “Important” works. If that was the case I could rebroadcast the Dallas Mavericks basketball games. Which would be justice since Mark Cuban things intellectual property is holding back the economy – except when it is his intellectual property.

  94. Wayne-

    I have proved software is not math over and over and over again. The truth doesn’t matter it seems.

    It is about time that those who claim software IS math do the proving. Why don’t they? Because they can’t. They point to the arguments of some professor here or there but can’t articulate themselves. So all they do is believe what someone else has told them — regardless of the fact that those other people are wrong and I demonstrate them as wrong over and over and over again.

    I’m still waiting for someone who claims software is math to solve the IPWatchdog homepage. If software is math a simple PHP/HTML page of code should either be able to be solved. No one can solve it and once I pose that challenge the lemming pretenders go away never to return. That should be at least some evidence in and of itself.

    Does anyone who has REALLY thought about software even seriously challenge that software tells a machine what to do? Of course that is what software does, and as such software directs a machine to take action. Software, therefore, directs the processes the machine will take to do whatever the software tells it to do. Software is not math. It is absurd to call software math. The only logical (and I use that term very loosely) reason anyone could fool themselves into believing software is math is because code is frequently written using lines that look like mathematical expressions. They are not mathematical expressions, they are directions.

    For example:

    < ?php /* Widgetized area on top of the regular content. */
    if ( !function_exists('dynamic_sidebar') || !dynamic_sidebar('Blog Middle') ) : ?>

    This is PHP code. That which is between /* */ is not read by the computer and provides an opportunity to document what this particular call does. Why? Because that is how the language is set up.

    The rest tells the page that if this happens then call the ‘Blog Middle’ function and display it.

    Even computer programmers should understand that software is not math. If it were math then why would they need to explain between /* */ what the particular call is doing? The fact that it does something demonstrates that it is a process. If this then that.

    Time for those who prefer to ignore reality and live in a land of make believe prove their ridiculous claims.

    _Gene

  95. A (t+1)= A (t)+1
    is a math funct of time, or clock cycles.
    The “solution” of a homepage is its rendering by the browser. We have math for quantum physics and this year’s nobel for the quantum computers of the future :) but maybe someone patented them in advance… ))

  96. Math describing how quantum mechanics does not turn physics into math. The math exists even if there were no such thing as quantum mechanics and quantum mechanics exists even if the math has not been discovered to describe it.

    The solution you describe is not math – it is electronics

  97. I don’t want to turn physics into math. Math exists without physics but not viceversa. Same way electronics is based on physics (and not the opposite).

  98. I do find it a bit weird how many people and specifically those working with software development should be so keen on proving that “software being maths”.

    Back in the 1970’s there was a big academic debate that resulted in two important things:
    1. Computing was not a branch of mathematics, so the first standalone Computing schools were founded and pure Computer Studies degrees were awarded.
    2.Computing became a science and so (most universities) started awarding BSc’s instead of BA’s.

    In the 1980’s another important battle was won, particular Computing qualifications and disciplines became recognised as an engineering discipline and so the suitability qualified could also gain a C.Eng. finally in the 1990’s Computing was elevated within the engineering community and became able to award CITP (I’ll ignore the debate over the relative equivalence of the CITP and Computing C.Eng. to a traditional engineering based C.Eng.)

    Where are we now? Well what we do know is that Computing isn’t an art nor is it maths, but a knowledge and appreciation of these does help, it is a science (sort of) and is evolving into an engineering disciple, but isn’t like real or true engineering (according to the engineers) and have more recently been chasing architects for the right to use/mis-use that title.

    So to want to prove “software is math” would seem to imply the desire to turn the clock back and return computing to the maths department basement.