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Lies, Damn Lies and Media Hatred of Patents (and the CAFC)


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: October 3, 2012 @ 6:15 am
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If most reporters knew anything about patents they would be embarrassed to have their names professionally associated with the drivel they try and pass off as news. But media ignorance of patents specifically and intellectual property generally is nothing new.  Errors are so easy to document that it is virtually impossible to take them seriously.  But then every once in a while an article crosses the line even for a know-nothing anti-patent zealot masquerading as a journalist.

Indeed, few articles have struck a nerve in me quite the way that a recent Ars Technica article did.  The article is titled How a rogue appeals court wrecked the patent system. It is a cheap shot, factually inaccurate and embarrassingly incorrect “news” story that concludes the Federal Circuit is at the heart of all the problems in the patent system. A real Pinocchio tale.

How did the media get to such a low place, where sensationalism means more than truth? Once upon a time the media was viewed as a bastion of truth and integrity.  They were viewed by the Founding Fathers as the virtual fourth branch of government.  A free media would offer checks and balances against the three co-equal branches of the federal government, and by keeping the people informed would keep government in check.  Oh how the mighty have fallen. There is hardly any such thing any more as a fair and objective media outlet.  Simply put, truth doesn’t matter to the media. That which passes for news is full of errors, inaccuracies and outright lies. The public is being deceived, and in our little space the deception seems to be part of a coordinated effort to destroy the patent system as we know it.

Overwhelmingly media outlets have an agenda — get people to watch, read or listen at all costs. Media bias and issue advocacy seems to be what many media outlets have decided is the best way to increase market penetration.  Media bias and issue advocacy seems to appear virtually any time a non-industry media outlet publishes any kind of faux-news article on any topic relating to intellectual property.  Sure there are good reporters out there fighting the good fight and doing whatever they have to do to get the story correct, such as John Schmid at the Milwaukee Sentinel Journal.  Sadly, for every John Schmid that cares enough to get it right there are dozens and dozens of reporters who either have an anti-patent agenda or who are completely ignorant.

Just the other day I watched a TV news report go to length to discuss the measures Kodak was taking to help prevent the company from going into bankruptcy including selling the company’s patent portfolio.  For goodness sakes Kodak has been in bankruptcy all year and is fighting to get out of bankruptcy!  See, for example, here and here and here.  If the media can so casually and carelessly get something like Kodak being in bankruptcy wrong then what else are they getting wrong in those areas where we are not intimately familiar?

The way that the ACLU and the various anti-patent zealots have approached the gene patent question is also evidence of media bias.  Anyone who is willing to lie and say that Myriad’s patents cover every man, woman and child in the United States gets whatever time or space they need to explain their clearly erroneous views.  The more outlandish the claim — such as Myriad owns every man, woman and child in the United States because the Patent Office gave them these patents — the more likely it will be repeated again, and again, and again.  Never mind that the patent actually covers isolated DNA, which simply, as a matter of science, cannot exist inside any human being.  See, for example, here and here and here.

When I first saw the aforementioned Ars Technica article I was intrigued by the title.  A rogue court?  I think we certainly have one of those that interferes with the U.S. patent system. I thought perhaps this could be an enlightened view of how the Supreme Court has ignored its own patent law precedent, breathed mindless (and needless) uncertainty into fundamentally important patent doctrines, pretends that 7,000 plus patent examiners who are not lawyers are capable of making fine legal determinations on a case-by-case basis without bright line rules to apply, and how many Supreme Court decisions on patents are internally inconsistent and hopelessly irreconcilable with other basic, fundamental patent principles.

No!  Believe it or not the “rogue appeals court” that was being referred to was the Federal Circuit.  At every turn the article explains how the Supreme Court is some kind of genius patent court.  If only the Federal Circuit hadn’t interfered little would be patentable and everything would be right.  Oh my goodness.  I wanted to vomit!

There were many erroneous charges made by the author, a fellow by the name of Timothy Lee. One particularly egregious error relates to the patentability of software. Lee incorrectly claimed that the Federal Circuit overruled the Supreme Court and found that software was patentable when the Supreme Court had said it was not.  He wrote:

[S]oftware was generally considered to be ineligible for patent protection based on a trio of Supreme Court decisions handed down in the decade before the Federal Circuit was created.

Of course, this is completely false.

What is the truth relating to software patentability?  Well, the United States Supreme Court first addressed the patentability of computer software in Gottschalk v. Benson.  It is true that it was the widespread belief in the industry that the Supreme Court in Benson decided that software was not patentable, which is a fair reading of the decision.  What Lee ignored, however, is that the Supreme Court later retracted the blanket prohibition against patenting software in Diamond v. Diehr.  So it is simply factually inaccurate to say that Supreme Court precedent prohibits the patenting of software.  Lee just didn’t do his homework or didn’t care to get it correct.  For those interested in the history of the patentability of software please see my 4 part series The History of Software Patents.

In any event, since Benson and Diehr the Federal Circuit has spent the better part of three decades trying to figure out under what circumstances software (or computer related processes) should be patented.  Quite recently, however, the Supreme Court weighed in again in Bilski v. Kappos.  Don’t believe me?  Read the decision for yourself.  Only Justice Scalia refused to say that at least some software is patentable.  Justices Kennedy, Roberts, Alito and Thomas would favor widespread software patentability, while Justices Stevens, Breyer, Ginsberg and Sotomayor recognized that at least some software has to be patent eligible.  See footnote 40 of Justice Stevens’ opinion concurring in the judgment, which approves of Judge Rich’s ultimate decision of patentability in State Street.

Indeed, in Bilski the Supreme Court specifically acknowledged that software is patentable.  So why didn’t Lee mention this 2010 Supreme Court decision?  Because the Bilski reality obviously didn’t fit into his predetermined narrative.  But how could it fit into his narrative?  It simply had to be ignored as if it never existed, swept under the rug in order to tell the story he determined he wanted people to believe.  But make no mistake.  No fewer than 8 of the 9 Supreme Court Justices directly stated in Bilski that at least some software is patentable.

So why would Lee have made such a provably false statement?  Was he lying or just clueless? It really doesn’t matter, does it?  He and others like him make these clearly erroneous statements and then they just hang out there changing hearts and minds of the public and influencing political leaders.  Truth SHOULD matter damn it!

Lee also spoke approvingly of Judge Richard Posner’s decision in Apple v. Samsung and “Posner’s skeptical view of the patent system…”  I didn’t see any mention of the fact that the entirety of the decision was unnecessary and completely useless.  Lee didn’t mention that this particular decision by Posner demonstrates everything that is wrong with a Judge pontificating about something he doesn’t understand and on an issue that was unnecessary to the decision. You see, Posner answered the question on a procedural matter and then went on several dozen pages lecturing everyone on his view of the way things should be.  Posner is supposed to be conservative, and there is NOTHING conservative about babbling dicta.  For my full take on the Posner decision please see The Preposterous Posner Decision.

Of course, Lee doesn’t understand the issues well enough to know what is material and what is immaterial.  So what do you expect?  Increasingly journalists seem to think that this “patent stuff” is easy and they can dip their toe into the water.  They make the same naive, reckless, stupid mistake as does the Supreme Court of the United States. Patent law is a speciality for a reason. It is only one of two areas of speciality where attorneys can market themselves as specialists. I have passed the Patent Bar Exam administered by the USPTO, so I can say I am a patent attorney. There is a reason for the specialized examination before one can practice in the field. There is a reason that patent attorneys can practice patent law in every state in the country even without being licensed by a particular state to practice law where they work. Patent law and issues are complex and anyone that thinks they can just dabble in patent law, whether it is the Supreme Court, Mr. Lee or Judge Posner, are sadly mistaken; indeed they are foolish.

But the thing that got my blood boiling more than anything was the ignorant, arrogant, dismissiveness of Lee with respect to Chief Judge Paul Michel.  Here is what Lee wrote about Judge Michel in its entirety for you to judge in context:

Instead, patent appeals are exclusively heard in DC by judges who live and breathe patent law. Unsurprisingly, this leads to insular thinking. For example, when we interviewed Paul Michel, who served as the Federal Circuit’s chief judge from 2004 to 2010, he didn’t seem to understand the problems facing small software companies. “If software is less dependent on patents, fine then. Let software use patents less as they choose,” he said, seemingly oblivious to the fact that software companies don’t have the option to opt out of patent troll lawsuits.

(emphasis added).

So Mr. Timothy Lee, who is not an attorney of any kind, had the audacity to say that Chief Judge Michel is oblivious.  It is no secret to readers of IPWatchdog.com that I am a fan of Chief Judge Michel’s and have had many opportunities to chat with him on and off the record.  Not only is he one of the preeminent patent scholars in the United States, but he is one of the preeminent lawyers and jurists in the United States.  Chief Judge Michel was the attorney who took President Richard Nixon’s deposition, he was the lead prosecutor in the Korea-gate scandal where Members of Congress were being bribed, he was an attorney for the Senate Judiciary Committee and a Judge on the Federal Circuit for over two decades before he retired to become an outspoken (and non-paid) advocate of the patent system.  And this know-nothing, tech-policy writer who doesn’t know the first thing about patents or innovation is calling Judge Michel obvious? Unbelievable!

I decided to write Lee on Sunday evening, not long after the article posted to Ars Technica.  I wrote:

Perhaps you should write about something you comprehend.

While so many of your statements show a complete lack of understanding, none come close to how dismissive you are of Chief Judge Michel.  Do you even realize that a software company does not obtain patents out of concerns over patent trolls?  Obviously not.  Do you even realize that patent trolls are unable to be sued to stop what they are doing?  What good is owning a patent against a patent troll?

Please either do a better job of research or stick to writing something you understand.

He responded and said:

The point is that companies don’t have the option of opting out of the patent system if it’s not acting as a net positive to innovation.

Frankly, I’m not even sure what he was trying to say, but I replied:

Actually, they do have an option to not seek patents.  There is no one holding a gun to their heads.

Further, your assertion that the patent system is not a net positive on innovation is laughably absurd and shows an incredible naivety. Only someone who is not versed in history and experience could hold such an opinion.  Why don’t you look at places in the world where there is no patent system and see what kind of innovation they enjoy. Also look at places that adopt a patent system and witness the economic growth and expansion of innovation.  If you care to get to the truth it is there to be seen.

I have not heard back from Mr. Lee and I doubt I will.  He and the many others like him out there really don’t care about the truth.  They have a philosophically driven ideology and there is no room for patents anywhere within that ideology.  They celebrate the fact that prior to the birth of the Federal Circuit, patents were literally NEVER found to be valid in litigation in certain district courts and Regional Courts of Appeals.  They celebrate the fact that when the Supreme Court hears a patent case it overwhelmingly winds up ruling against the patentee.  They prefer to pretend that patents impede innovation rather than let the facts, experience and history tell the true story which is that a patent system unquestionably fosters innovation.

I disagree with the Federal Circuit in many instances.  If I were a Judge on the Federal Circuit I would find myself in dissent in many instances and I would find myself in the majority in many instances, just like any other knowledgeable observer of the patent system would.  But to suggest that the Federal Circuit is a rogue Court and has ruined the patent system is factually incorrect.  It is either stated as the result of utter ignorance, stupidity or because there is an agenda.

Mr. Lee most certainly has an agenda, and an anti-patent agenda.  His bio on Ars Technica proudly proclaims that he is the co-author of “a Firefox plugin that helps users liberate public documents from the federal judiciary’s paywall.”  That is rich.  “Liberate public documents.”  So in other words he is a computer scientists who thinks everything should be free and isn’t adverse to taking measures into his own hands to achieve the outcome that he deems proper.  The terms “self important” and “self-righteous” jump to mind.

So take what Mr. Lee has to say with an appropriate grain of salt. His lack of knowledge of the subject matter is breathtaking and Ars Technica should be ashamed at having published such an inaccurate attack piece.  If they are not going to properly vet articles in advance of publication then what have they become?  Little more than an online technology specific version of those tabloids with the salacious headings.  The patent system is far to important to the U.S. economy and our way of life to suffer from that level of journalistic ignorance and bias.

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Posted in: Anti-patent Nonsense, Federal Circuit, Gene Quinn, IP News, IPWatchdog.com Articles, Patents

About the Author

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

 

51 comments
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  1. Gene,

    You’re wasting your time trying to talk “truth” as a counter to the outreach that the sell-out-shills of MSM have.

    1) First it is only your small choir here that is listening to you.

    2) Second, in so far as Main Stream Media (MSM) is concerned, money comes first and truth is an inconvenient bast_rd child that needs to be forsaken lest it gets in the way between the reporter and his bargained-for 30 pieces of silver.

    3) Third, even if you could get your “truthiness” message out to the clueless masses, they wouldn’t understand.

  2. Gene,

    Yeah, Lee is clueless and completely biased. Witness this gross mischaracterization of Mayo v. Prometheus:

    Supreme Court Invalidates Patent on Human Thought

    Posted by Timothy B. Lee

    On Tuesday, the Supreme Court invalidated a patent that effectively claimed ownership of a fact about the human body. A joint brief by the Cato Institute, Competitive Enterprise Institute, and the Reason Foundation had urged the high court to reject the patent, arguing that it posed a threat to freedom of thought and innovation.

    Frankly, the media that Lee represents doesn’t care one iota about getting the facts right. They should be called PR lobbyists, not writers or journalists.

  3. My impression of the Ars T. article was that it was more anti-Federal Circuit than anti-patent – otherwise why use the term “wrecked the patent system” in the title; although I agree the article does have an anti-software patent viewpoint.

    The article’s premise seems to be that the Federal Circuit are wrecking the patent system by finding in favour of patent holders significantly more often than in the past. Although there is a throw-away about weak patents, there is no discussion of why this might be or as to why this is wrecking the patent system, nor as to what was so good about the pre-FC patent system.

    Returning to your theme about the media and reporters, it reminded me of the two glaring omissions in Raymond Millien’s series of articles in IPwatchdog commencing with “Are the Smartphone Patent Wars Giving Patents a Bad Rap?” namely the media’s reporting of events and the changing way in which patents are being viewed and used by industry.

    R

  4. I am unsure of why the entire media, i.e., traditional news media, modernized news media and the blogosphere, was attacked here or even why Ars Technica was attacked.

    The article you mention appears to be the work of a single writer/”journalist”. All journalists are not equal. Further, even good journalists may, at times, make mistakes in failing to uncover inaccuracies or surrendering to biases. When one writer fails to render accurate news it is up to other writers and/or the public to point out these inaccuracies and/or to correct that writer. IMHO, attacking entities without any noted or specific offense/provocation merely creates enemies unnecessarily, i.e., creates bad karma.

  5. In the UK we have the Leveson enquiry into the culture, ethics and practises of the press. Its eventual report will make interesting reading and the evidence is already on the enquiry website. Much of it is worth a read: the issues are by no means local to the UK.

    One issue is that once the media formulate a story, they follow with a heard instinct and only facts and opinion that supports the story in the form that the media perceive it to be gets reported. Contrary facts and opinion is routinely suppressed, and when misconduct is alleged corporate denial is the order of the day. And journalists spend their days in a semi-permanent state of shock, indignation and outrage. It is amazing that journalists can do their jobs given the emotional state in which they appear to spend their lives.

    Another issue of general importance is the absence of means of redress when falsehood is propagated, whether wilfully or by innocent mistake. It has been suggested that the media when found to have made errors should be compelled to publish the error and its correction with at least the prominence given to the original report. No great likelihood of this happening on either side of the Pond.

    I am not sure that this is anything new: patents did not get a great shake back in nthe days of FDR and Judge Douglas.

  6. Hope-

    First, allow me to point out that taking your comment seriously is quite impossible. You say:

    “attacking entities without any noted or specific offense/provocation…”

    That demonstrates you did not read the article. So then the question is why did you comment? I provide specifics. I mentioned the gene patent matter, I referenced a news story on Kodak. I went through some of the egregious lies in Mr. Lee’s article. So how could you possibly say that I mentioned no specifics? Obviously you didn’t read the article.

    To the substance of your comment. Why don’t you tell me when the media gets an intellectual property story correct? When do they get a patent story correct specifically? Without mentioning John Schmid give us examples.

    In addition to the examples given in the article, which you seem to have ignored or missed. I can provide others. See:

    http://www.ipwatchdog.com/2009/05/01/bad-patent-advice-from-the-wall-street-journal/id=3015/

    http://www.ipwatchdog.com/2010/03/01/inc-coms-bad-advice-on-finding-a-good-patent-lawyer/id=9387/

    http://www.ipwatchdog.com/2010/09/10/wsj-suggests-slower-patent-process/id=12436/

    http://www.ipwatchdog.com/2009/06/14/500-million-patent-applications-a-year/id=4119/

    http://www.ipwatchdog.com/2009/05/24/san-francisco-chronicle-thinks-gravity-is-an-idea/id=3733/

    http://www.ipwatchdog.com/2009/05/07/pc-mag-gets-kindle-patent-story-all-wrong/id=3310/

    As I’m sure you are also aware, the entirety of the reporting on the gene patent matter in every news outlet was one lie after another. They ignore the law and they ignore the science and allow the ACLU to dictate the story and what they write because they are philosophically and ideologically aligned with the ACLU.

    -Gene

  7. Roland-

    I think the Ars Technica article is clearly anti-patent because of the premise. The author repeatedly explained that what wrecked the patent system was when the Federal Circuit started siding with patent owners instead of finding 80% or more of the patents reviewed invalid. So the author wants a patent system where few patents are able to stand up in court so that it is easier for those who don’t innovate, but instead copy, to infringe without penalty.

    -Gene

  8. Step-

    I appreciate your comment. However, you say: “it is only your small choir here that is listening to you.”

    I know that not to be true. I think you – and others – would be quite surprised. Don’t give up the fight. People – important people – are reading, listening and paying attention. Don’t feel like this is a lost cause. So please do spread the word to whatever extent you can. The media has a bully pulpit, but many of those who matter the most DO pay attention.

    I do completely agree with you that in the main stream media money comes first and truth comes in a distant second, if it finishes the race at all.

    Cheers.

    -Gene

  9. EG-

    I largely agree with you. However, after my inside look at lobbying (provided by Manus Cooney in our interview) I wouldn’t even say that the media is lobbying. They are far more like activists or protesters than anything else. Issue advocacy through the use of propaganda tactics sometimes feels more like it.

    -Gene

  10. Thanks Gene!

    I missed the irony, namely it is a poorly functioning patent system that has been wrecked by the FC!

  11. No worries Roland. There are a lot of layers to peel in the article.

    Thanks for reading. Cheers.

  12. Gene,

    “So in other words he is a computer scientists who thinks everything should be free and isn’t adverse to taking measures into his own hands to achieve the outcome that he deems proper. ”

    Sadly, this is pretty much the mindset of most of the anti-patent crowd and it is no secret that the bulk of the haters do indeed come from computer science/software backgrounds. This culture encourages and breeds an attitude of take what you want precisely because it is so easy to steal property when it just a bunch of 1s and zeros. You rarely hear this kind of nonsense from any other scientific or technical discipline.

    I went to a top notch school and had the privilege to serve on the honor board, which heard cases concerning potential infractions of the school honor code. For the most part these cases were uneventful, b/c, and I am not exaggerating, 90% of the time the student in question would confess to the violation, and that was pretty much it. But there was always that 10% who, even when confronted with clear evidence of guilt, would continue to deny it or, more typically, would assert that it was no big deal.

    Wanna guess what the predominant major was for this 10% group?

    I’m sure I’ll get plenty of hate mail for this one, but I heard dozens and dozens of cases…. it was not some kind of isolated incident….

  13. JNG-

    Thanks for your comment.

    I think the common denominator with the computer science crowd is that they see absolutely nothing wrong with copying the work of others and passing it off as their own. While generalizations are always over broad, as a general rule it seems that there is really an anarchistic bent to many in the computer science world. They just don’t think rules apply to them the same way that they apply to everyone else.

    -Gene

  14. Gene, these people are not journalist, they are fanporters, meaning bloggers who are fans of the news and offer opinions.

  15. Rather than for 20 years, patent terms should be extended longer, like copyrights.

  16. As a computer scientist I think that is a basically fair characterization… And look what the computer science crowd’s ethos has accomplished over the last 50 years. We have transformed the world. You are here ranting today because of us, so don’t look a gift horse in the mouth. If you don’t like it, how about turning this blog into a paper newsletter and mailing it out instead of using our work to talk down to us about innovation, as you are essentially arguing against the tangible results of our work even as you reap their benefits.

    You can’t have both rapid innovation and a patent system that uses government-granted monopolies to prevent innovation. A free market is better for everyone except companies that don’t want to work and don’t want to innovate, and I think we can all agree that rapid innovation has proven to be pretty good for everyone’s standard of living.

  17. Comment received via e-mail from BB, who gave permission to have it posted here.

    ***

    Thank you for your excellent post on the media’s lack of accurate reporting on patents. Some of this, I agree, has to do with simple ignorance of a very complex topic. Reporters are being asked to make judgments on developments that are very difficult to comprehend. However, increasingly other forces are at work. Some publications may being getting it wrong because of their technology perspective and agenda. It is interesting to note which are most consistently anti-patent .

    Poor IP coverage may have something to do with advertising revenue and reader expectations. Patent misinformation is compounded by purportedly objective but highly suspect scholarship from the people like Bessen, Meurer, Lerner, Heller, et al. This has a palpable impact on what reporters and others like lawmakers believe. IP rights, especially patents, have not fared well the Court of Public Opinion and will not until the general business and technology reporting is improved, and poor reporting and scholarship are challenged.

  18. Computer Scientist-

    No. I am not here ranting because of you. I am here ranting in spite of you.

    Computer scientists like you think that the sun revolves around you, but the reality is that the computer scientists contribution to innovation is really nothing. Programming is merely the ministerial task of translating the invention into a format that can be understood by a machine. The innovative steps are done by others who then give you direction, which you follow. So if you want to get all high and mighty try and keep your comments real and factual. If you want to deceive then go elsewhere. There are plenty of places where people are confused by what computer programmers do and believe that it is black magic and are in awe of your error riddled beta deliverables.

    As far as rapid innovation and a patent system. What you don’t know could fill volumes. You actually have it exactly backwards. You cannot have rapid innovation without a patent system.

    You are nothing more than a copycat who doesn’t have original thought and wants to steal from creators who do. That is not innovation. Innovation requires originality.

    -Gene

  19. @#16 Computer Scientist says:

    We have transformed the world.

    My answer to that is that you alone “did not build that” you, you ingrate.

    You did not invent the solid state transistor.
    You did not invent the integrated circuit.
    You did not invent the high density magnetic, optical and flash memory drives.
    You did not invent the multi-core microprocessor.

    It only “feels” to you as if you write on a blank slate when you start scribing a new program.
    That feeling is a delusion based on intentional illusion.
    The delusion is created because all that lies under it is hidden in many many shells for the purpose of isolating the end user (you) from the complexity that lies underneath.

    I truly do grok where you Computer Scientists are coming from.
    I would “feel” the same way if everyday I saw a blank slate as I began to code.
    However, every day I try to remind myself that I am but a small micro-be standing on the shoulders of giants.

    You should too. ;-)

  20. Gene please. I was speaking with reference to several statements you made with respect to “the media” in general with Mr. Schmid being the exception. And, BTW, I thoroughly read your article but, as I have not the time to rummage through old articles or the inclination to indulge in exchanging insults, I will let this matter be. It is just not worth it to me.

    Good day sir.

  21. By the way, I enjoy reading your BLOG.

  22. Hope-

    I appreciate you reading the blog. I just don’t know how you could say I didn’t give specifics if you read the article. I referenced several specifics within Mr. Lee’s article. I also referenced a TV report on Kodak. I also referenced the coverage of the ACLU gene patent challenge.

    I wasn’t trying to insult you. The charge you made, however, was not accurate. To say there were no specifics in an article full of specifics just rubbed me the wrong way.

    -Gene

  23. Computer science and programming are not the same thing.

    Of course we stand on the shoulders of giants every day, but what is the difference between “standing on the shoulders of giants” and “copying the work of others and passing it off as their own,” aside from how you want to spin it?

  24. This anti-patent attitude by the press should not be viewed in isolation, they are also anti-property, anti-free enterprise, and anti-reason. It has been shown over and over again that they have no interest in the truth.

    Mr. Computer Science does not understand Free Enterprise, property rights, or history. Computer science took off when patent protection was strengthened for software. As for Patents being a monopoly, CS has no idea what he/she is talking about. First of all the patent statute states that patents are personal property. Second of all, a monopoly is a right to a market. All property rights give you the right to exclude. A patent does not even give you the right to make or sell something, so it cannot be a monopoly. Third, patents are granted for the reason all property rights exists, because the owner created something.

    There is absolutely no empirical evidence that countries are better off without a patent system. If you look at the Fraser Institute or the Wall Street Journal/Heritage Foundation surveys of economic freedom, you will see the richest countries and the most economically free countries have the strongest patent systems. Those countries in the lowest 20% do not innovate, and do not have a wide dispersion of technology and live on the edge of starvation. The fact is the most innovative countries and those with the widest dispersion of new technologies and the wealthiest are those countries with strong patent systems. None of this would be possible if there was even a shred of logic behind the anti-patent arguments. The reason this occurs is that property rights encourage the creation, investment, and dispersion of new technologies.

  25. “…but what is the difference between “standing on the shoulders of giants” and “copying the work of others and passing it off as their own,”…”

    ahhh

    and therein lies the blind spot I was referring to which you so aptly define with this comment

    anyone that conflates “building OFF” – and crediting- the work of others and simply “stealing it” is a prime example of the ethical shortcutting that is endemic to many programmers

  26. @#23 Computer Scientist:

    1) When you build something new, even while standing on the shoulders, you deserve recognition and compensation for that which you added.

    2) When you refuse to acknowledge that another colleague stood on the same shoulders as you did and he saw something and build anew (and to the level of nonobviousness) while you did not, that is called being an ingrate and a taker.

    3) If you choose to give your work product away for free, say to the open source cause, that is perfectly fine. Just don’t insist that your fellow man do the same with his novel and nonobvious invention.

  27. Oh, there were specifics in your article; there is no argument there. It is just not immediately apparent that the writing presents specifics against every entity in the entire media which appeared to be condemned and/or, in a fashion, held in contempt with respect to patents and, perhaps, with respect to other subjects as well. There are a great number of entities implicated in statements such as, for example, “Simply put, truth doesn’t matter to the media”

    Look, Gene, your method of covering events is not my business; your BLOG is, obviously, your BLOG and I enjoy reading it. I think it takes a great deal of courage and effort to put one together and keep it informative and running as smoothly as you have done. My comment was the result of a knee jerk response to your article. But let’s just forget it as the differences here are unimportant.

  28. Patents are an affront to private property. Software patents say it’s illegal for my computer to carry out certain algorithms without paying someone. To pretend that legal fictions like patents have anything to do with actual property rights, which do not depend on any government grant, is absurd.

  29. @24 seems absurd that you accuse Mr. CS of lacking a grasp on history when basic correlation/causation is completely lost on you.

  30. John, although it is not clear what you mean by private property, patent rights, as well as other property rights, whether they be for land, house, etc., are, quite simply, bundles of rights either granted or enforced by the government.

  31. Gene,

    You’re article is quite slanted and, frankly, mean. While you may or may not have a point that the Supreme Court has in the past explicitly disallowed software patents, it is certainly not wrong to say that it is specifically the Federal Circuit that opened the floodgate.

    However, it is true that SCOTUS in Bilski has accidentally stated that software patents are not legal. The problem is that, as yet, the SC doesn’t understand what software is. Software is nothing but a mathematical algorithm. The SC admits that algorithms are not patentable. Before you argue that don’t know of what I speak, let me state that I AM an expert in Math and Software, having advanced degrees in both Math and Computer Science (as wwell as Physics). I currently run my own small software firm. Patents on software are a huge drain on the patent system. I’ve yet to see more than a handful of software patents that even pass a section 101 exception. So, the biggest problem at the moment is that neither the courts, the majority of the lawyers, nor the Patent Office have a clear understanding of software to make decent judgements on what is and is not worthy of a software patent.

    You further weaken your argument by deceptively (or are you outright lieing?), talking about gene patents. Which should not be patentable in any manner. You speak of people talking about being owned, because someone has obtained a patent on a gene they have isolated. I agree the process of isolating a gene would and should have been patentable, for the first person to do it, or for the first person to do it in a new and novel way. I disagree that is is anything but obvious now to isolate a gene. But furthermore, isolating a gene is a purely chemical reaction, and granting patents on isolated genes, is granting a patent on a natural phenomenon, as all genes were first created by a chemical process in nature first. It would be like granted a patent on a human white blood cell. White blood cells don’t exist by themselves in nature. Neither does a human femur, nor a human brain, not a human tongue. by you definition above any of these things would be patentable.

    As to the rest of your rant tl;dr;

  32. Joe-

    If you want to participate in the debate that is fine, but cryptic comments like yours are obviously unhelpful.

    If I understand your comment we are just supposed to completely ignore history. Obviously that is a ridiculous comment.

    I love so much when people like you ignore facts in favor of thought experiments and then yell correlation is not causation. As if that is some justification for ignoring truth and factual reality in favor of fantasy. People like you are just so clueless.

    -Gene

  33. John-

    Algorithms are not patentable. Please do your research and educate yourself on the issues before you reach inaccurate conclusions and then announce your ignorance to the world in writing.

    -Gene

  34. Hope-

    Differences are not at all unimportant. You just said in your comment that I didn’t provide specifics. That was incorrect and I pointed it out. I did provide specifics. Then in response to your comment I provided more specifics.

    I could take this into a political direction, or any other direct really. The media does not objectively cover news any more, and that is hardly shocking to anyone who reads or watches. Political leaning and ideology rules the day. News stories that do not advance the chosen narrative are not covered. Everyone knows that is true.

    For example in order to have President Obama up in the polls the pollsters include 10% to 12% more Democrats than Republicans. No one seriously believes that 10% to 12% more Democrats will show up on election day. Even in 2008 when there was pro-Obama mania everywhere you turned there was only a 7% Democrat advantage on election day. Anyone who is objective knows the country has leaned more Republican over the last 4 years and there will not be a 10% to 12% Democrat advantage on November 6, yet every news agency presents these skewed polls as truth. Why?

    Bringing this back to IP, anyone who doesn’t acknowledge that the media celebrates infringers and vilifies innovators is just not paying attention.

    I’m sorry that you don’t like me calling it the way I see it, but I’m not going to sit by and allow anyone to make false accusations about what I write. I gave plenty of specifics and can continue with more and more. It is just odd how conclusory statements suffice for the anti-patent crowd but overwhelming evidence is necessary for the pro-patent crowd and even then the facts and history are ignored as the result of pea-brained lemmings yelling “correlation is not causation.”

    -Gene

  35. Gene

    I too an a computer scientist and wish to apologize for my arrogant colleague.

    While I might read some of the technical sites that are anti-patents (and anti-software-pats in particular), I do not value their opinions or comments regarding patent matters – just like I do not come to ipwatchdog for software/hardware news. They each have their place – sites like arsetechnica need to sell ads and so pander to their crowd. It just so happens that anti-software-patents are an easy-to-sell flavour of the day – similar to how dope was to the hippie generation. It didn’t mean all hippies smoked, but a vast number likely did (I wasn’t there – just trying to make a point).

    Keep up the good work.

  36. To ‘Computer Scientist’ @16:

    You said:
    >>> “And look what the computer science crowd’s ethos has accomplished over the last 50 years. We have transformed the world. ”

    and

    >>> “You can’t have both rapid innovation and a patent system that uses government-granted monopolies to prevent innovation.”

    Seems to me that we have had software patents for a substantive portion of that time and plenty of innovation.

    Then you said:
    >>> “A free market is better for everyone except companies that don’t want to work and don’t want to innovate, and I think we can all agree that rapid innovation has proven to be pretty good for everyone’s standard of living.

    If you are suggesting that software patents are easy to come by, I suggest to do some homework.

  37. To Jack Waldron:

    You said:
    >>> “Software is nothing but a mathematical algorithm. ”

    You do realize that you’re not providing anything of value right? Or are you under the impression that you’re teaching us all something new?

    Software is a combination of bits, just as an engine is a combination of mechanical parts. It’s ***HOW*** you put those bits together that is innovation. The automotive has been improved and advanced for 100 years now with little end in sight for progress to continue. I suspect in just 20 years that we’ll look back with similar astonishment at software improvements. Look how far things have changed in just the past 5 years since the iPhone was released.

    With comments such as these, it is quite obvious not only to the patent professionals on this board – but also to computer scientists like myself at how little you understand of the business world.

  38. Jack @31-

    You say: “Software is nothing but a mathematical algorithm.”

    Then you profess to be an expert in Math and Software.

    Quite obviously you know absolutely nothing about software whatsoever. It is the most ridiculous claim to suggest that software is math. Only someone who knows nothing about software could ever hold such an asinine position.

    Please educate yourself on the issued. Read:

    http://www.ipwatchdog.com/2008/12/15/computer-software-is-not-math/id=1040/

    Software directs a machine to operate in a certain way. If you don’t appreciate that then you are no expert in the area of software.

    You also say:

    “I’ve yet to see more than a handful of software patents that even pass a section 101 exception.”

    So are you a lawyer too on top of being a math, software and physics expert? Your conclusion here is as ridiculous as claiming software is math. This is a legal conclusion for which you have absolutely no training to provide a relevant opinion. If you haven’t seen more than a handful of patents that satisfy the machine or transformation test that is because you haven’t looked. But isn’t that so typical for the know-everything computer scientists in the world?

    -Gen

  39. Gene,

    Let’s not get ahead of ourselves by conflating the genus, “software” with the species “computer software”.

    Even in the realm of “computer software”, some of that “stuff” can cause a data processing system to reconfigure some of its internal hardware before proceeding to carry out data processing functions inside the reconfigured hardware. More to the point, the reconfigured hardware could include an FPGA. So we don’t fully know what constitutes “computer software”, what constitutes a “computer”, and what does not. We don’t know where the boundary lines are drawn. What we do know is that it is easier (softer) to change “soft”ware than it is to change truly “hard” hardware or truly “firm” firmware.

    It’s seamless spectrum of possibilities ;-)

  40. Gene,
    I will repeat that you have not presented evidence that the truth does not matter to the entire media. And, yes, my standards do include telling the truth in as unbiased a manner as possible. Unacknowledged motives, conjecture, and personal bias appear, IMHO, appear, to be, in many cases, sophistry; not truth and, do not, in my opinion, even approach the truth unless they are carefully acknowledge. And IMHO, conjecture and personal bias do not, generally, serve as methods of of disseminating the truth.

    This is all I have to say of the matter. I thought the matter closed

    Good day sir.

    Sincerely,
    “Pea-brained” lemming

  41. Clearing up some confusing grammatical errors; am typing on my iPhone (explanation)

    Gene,
    I will repeat that you have not presented evidence that the truth does not matter to the entire media. And, yes, my standards do include telling the truth in as unbiased a manner as possible. Unacknowledged motives, conjecture, and personal bias appear, IMHO, to be, in many cases, sophistry; not truth; and, do not, in my opinion, even approach the truth unless they are carefully acknowledged. Further, IMHO, conjecture and personal bias do not, generally, serve as methods of of disseminating the truth.

    This is all I have to say of the matter. I thought the matter closed

    Good day sir.

    Sincerely,
    “Pea-brained” lemming

  42. Gene and Jodi,

    Interesting you pick only my preliminary statement that software is math, which indeed is what it is. It is a very advanced math, but it is still math. To be most precise, I should say it is symbolic logic. Since all software does is program a very complex array of logic gates. Every program in existence can be written entirely in symbolic logic. But, my major point is that nearly every software patent I’ve ever looked at has been totally and completely obvious to anyone in the field.

    Hence if it is “obvious”, it can’t be “new and useful”. From what I hear a cellphone’s software may well have hundreds of thousands of patents. How ridiculous is that? Software doesn’t direct a machine to do anything. Software merely sends out logic statements, which hardware is hardwired to react to in predefined ways. The same way a roll of paper with punched holes directs a player piano to play a musical score. Software is the musical score. THat’s what copyright is for. It’s not some new and wonderful invention. It is the CPU and the IO chips and other pieces of hardware that are the inventions. Software is just a book written in electronic letters.

    No I’m not a lawyer, and you Gene are certainly no mathematician. But it doesn’t take a lawyer to decide what is or is not worthy of a patent. Otherwise all those people working in the patent office would have to be attorneys. Of course the problem is that technology is so far advanced from the 1700s, that the patent system isn’t prepared to deal with the complexity of what is or is not worthy of being a patent. That task need s to be handed off to experts in the respective fields. Computer scientists should be evaluating software patents, microbiologists should be dealing with patents involving microbiology. Chemists dealing with chemical patents, etc.

    There are only two workable solutions for this mess. One get rid of patents, or two get rid of junk patents. I’m not against patents, but I’ve seen patents for things patented in the lat 90s and early 2000s which I’ve written code to do back in the 80s. But I’ve got neither the time nor the money to spend on subitting prior art and and trying to invalidate them and paint a large target on my back in the process. But I am not against all patents, just the broken way we have of dealing with them. There are a few software programs I consider truly innovative, and possibly some part of it’s design might be worthy of a patent even against my better judgement (that software is just an interactive book).

  43. Jack, do you mean to say Turing is wrong?
    It should be the Turing player piano and no the Turing “machine”?

    I’ll be looking forward to the publication of your ground breaking paper in the Assoc. of Computing “Machines” journal!

  44. [...] challenged Lee’s article on Wednesday, October 3, 2012, in an article titled Lies, Damn Lies and Media Hatred of Patents (and the CAFC). This prompted Lee to come out swinging again, this time on Forbes.com in an article titled The [...]

  45. Jack Waldron:

    >>> “software is math”

    Your argument is based on this mattering. How someone puts together various components is what matters. How mechanical parts are combined to construct some improvement in engines, or bits combined to construct some improvement in software – that’s what matters.

    >>> “Every program in existence can be written entirely in symbolic logic. ”

    so what. Likely every mechanical engine can be written in some form of language as well (blueprints, CAD program, etc…).

    >>> “But, my major point is that nearly every software patent I’ve ever looked at has been totally and completely obvious to anyone in the field.”

    Honestly, this is incredibly naive. Either you’ve only looked at a few, or you don’t know how to read them. This site/forum is full of some pretty smart guys. You would likely learn a lot by posting just about any of these patent numbers (along with a couple of sentences why you think this) and you’ll quickly learn why this statement is completely false. Indeed, this is one of the biggest myths perpetuated in the anti-swpats echo chamber.

    >>> “Software is the musical score. THat’s what copyright is for.”

    Wrong, the copyright just protects the implementation. For example, even if Apple had copyrighted various parts of the iPhone, Samsung’s Android would not have been found to infringe that. Copyright might work great for protecting copying the Mona Lisa, but not for software where there’s multiple ways to implement the same thing.

    >>> “Software doesn’t direct a machine to do anything.”

    Another assumption that I fear is guiding your beliefs. Wipe the software off any computing device and see how useful that machine is.

  46. Jack @42

    You are quite the character, remaining blissful in your ignorance.

    I was trying to be nice and not show you for the charlatan you really are, but now I will. You continue to say that software is math, which is absurd. Nevertheless, I will allow you to prove me wrong with a very simple task. You will, of course, be unable to complete the task, which will prove I am correct.

    Please solve the IPWatchdog.com homepage. If software is math that should be a very easy task. Can’t wait to hear your excuse for not being able to do this. Of course, it will be nonsense like your commentary here, but everyone will see you are exposed.

    Next, you say: “Every program in existence can be written entirely in symbolic logic.”

    While you may be a self professed expert in math, physics and software, you are no expert in logic. The fact that software code utilizes familiar symbols to define processes doesn’t mean that software is math. Your statement is mind-boggling simplistic even for a mathematician.

    I do like how you say software is math and then quickly divert from that point to say it uses symbolic logic. So which is it? Math or not? I suppose when you can’t solve a very basic HTML/PHP homepage we will have our answer, won’t we?

    Next you say: “my major point is that nearly every software patent I’ve ever looked at has been totally and completely obvious to anyone in the field.”

    How many software patents have you actually read from top to bottom? Just curious. Most math/software people just read the title and look at the pictures, maybe reading the Abstract. So why don’t you give us a number and also some illustrations so we can all try and comprehend what is in your head.

    The truth is that software patents do not represent things that are obvious to everyone in the field. You just don’t understand patent law at all. You probably don’t even know that when someone files a software patent 12 or 14 years ago the question is whether it was new and nonobvious then, not when the patent issues. People like you don’t care enough to understand the law you criticize, so you just see a patent issue on something that has been known for 8 or 10 years and never stop to realize the application was filed well before it was known. By definition that means the software is unique, but such truths are probably lost on you I suppose.

    Next, you say: “No I’m not a lawyer, and you Gene are certainly no mathematician.”

    Correct. I am an electrical engineer who was about 3 credits away from a dual degree in Math. Having a math degree is really quite useless, so I didn’t bother. I did successfully load up on graduate level math classes my final semester at Rutgers in order to boost my GPA. Watching math majors and grad students struggle with math that was really quite easy was rather amusing though.

    As far as your claim that we need to get rid of junk patents, why don’t you tell us how familiar you are with the machine or transformation test, or the way the the Patent Office has examined these patents since about 2002. If you were at all knowledgeable about the industry you would know that junk software patents are a problem of the past… the distant past.

    -Gene

  47. Jodi @45

    You say: “Wipe the software off any computing device and see how useful that machine is.”

    Amen!

    So Jack, why don’t you remove all the software from your computer and get back to us about how useful your machine is. Oh… wait… if you do that you won’t be able to get back to us will you? Of course not. Silly me. A computer without any software wouldn’t allow you to get back to us. Damn! Reality and facts getting in the way of an otherwise ridiculous argument.

    Software directs a machine Jack. If you don’t understand that then you can’t hardly be a computer user let alone some kind of software expert. LOL.

    -Gene

  48. Now Mr. Lee is using Forbes in another attack on patents: http://www.forbes.com/sites/timothylee/2012/10/03/the-federal-circuit-not-the-supreme-court-legalized-software-patents/

  49. The no-software-but-is-the-machine-still-useful test (or challenge) is not new.

    It was presented on Patently-O well over a year ago to clearly show that software changes a machine into a different machine. Of course, this is not a new concept and can trace to the factual and legal roots as found in (amongst other cases) In re Alappat.

  50. [...] Court has never authorized the issuance of software patents when in fact they clearly have.  See Lies, Damn Lies and Media Hatred of Patents and Doubling Down on Egregious Attacks on the Federal [...]

  51. [...] in Ars Technica, another article in Forbes, and then another article in the New York Times. [See article 1, article 2 and article 3]. Whether it’s Congress or certain courts that don’t want to have [...]