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Standing Up to the Anti-Patent Beanball


Written by Joseph Allen
Allen & Associates
Posted: Jan 1, 2014 @ 7:01 pm

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Baseball is a good analogy for politics, which is why political talk shows have names like “Hard Ball.”  A defining moment for any hitter is realizing that a 95 mile an hour fastball has just been deliberately thrown at your head.  Pitchers throw the “beanball” is to see if a batter has the courage to play the game knowing that the risk of serious injury is literally an inch away.  As former Dodger pitcher Sandy Koufax said: “Pitching is the art of instilling fear.”

A similar challenge is delivered to those who get in the way of well-funded lobbyist’s campaigns. An equivalent of the beanball is the attack article in the Washington Post, the paper of record for the political class.  So it should not be surprising that as soon as universities announced that they could not support the House patent reform bill in its current form that a beanball was immediately headed their way.

“The pitcher has to find out if the hitter is timid.  And if the hitter is timid, he has to remind the hitter that he’s timid” said Don Drysdale, a pitcher who built a career successfully intimidating batters. In baseball and politics the message behind the pitch is the same: “Kid, are you sure you want to take me on?”

Patent trolls have a surprising ally: universities ran in the Washington Post on November 30, 2013. Two days later “Techdirt” threw the follow up: Patenting University Research Has Been A Dismal Failure, Enabling Patent Trolling. It’s Time to Stop.

Their titles and parallel arguments suggest that both articles arise from shared talking points. Both immediately set up their victims by linking them with patent trolls.  Casting anyone as an “ally of patent trolls” after huge amounts of money have been invested vilifying the term in the public mind is meant to quickly knock opponents to their knees and drive them from the field.  Ostensibly the focus of their wrath is university patent licensing, but the real target is the patent system itself.

The Washington Post article begins by expressing astonishment that universities would join those resisting the House bill. “Many of the letters came from organizations you’d expect to be opposed to legislation weakening patent protection... But one letter opposing the legislation comes from a surprising source: academia.” (emphasis added).

That’s an interesting characterization of the bill’s purpose— which its sponsors would surely disavow. The author then gets to the point: licensing and the enforcement of university patents harm the public interest.

Essentially the universities are concerned that the legislation would make it harder for patent holders to enforce their patents. And they’re right. The line between patent trolls and other patent holders isn’t always clear, so any reform designed to make patent trolling more difficult is also going to inconvenience many conventional patent holders—including universities.

But it’s far from obvious that this would be a bad thing. After all, while universities don’t engage in the most egregious troll tactics, universities’ efforts to generate licensing revenue have imposed significant costs on the public that aren’t so different from problems created by patent trolls.

Several examples are presented supposedly illustrating this point including the licensing of Myriad for its genetic test for susceptibility to breast cancer (addressed in this previous column) and the development of an early AIDS treatment.  In the latter case, without patent licensing the drug would never have been available to patients at all as it required an expensive, high risk partnership between the university and the company to overcome formidable developmental obstacles.  Ironically, the licensing agreement gave the university its only leverage to make the treatment affordable in South Africa where it was sorely needed.

The article continues: “While the rest of a university works to promote the public interest by creating and disseminating new knowledge, technology transfer offices do just the opposite: enriching the university by obtaining patents that limit the public’s access to the fruits of university research.”  This is followed by “…the cash generated by patent licensing efforts is not free. It represents a tax on innovation that raises prices, limits consumers’ choices and slows future innovation. For licensing demands to be credible they must be backed by the implicit threat of a patent lawsuit.”

Thus, universities licensing inventions so they can be commercialized and turned into products that can actually be used by U.S. taxpayers— often alleviating intense human suffering– is characterized as preying on the public. Enforcing university patents against infringement is termed “patent trolling.”

Why companies would commercialize a university invention requiring considerable amounts of their own time and money in development if competitors could infringe it with impunity is not explained.

Abraham Lincoln said the patent system, the printing press and the discovery of America are the three greatest breakthroughs in all of human history. But you certainly wouldn’t guess that the patent system has much value after reading the Washington Post article.

Tech Dirt repeats the same themes calling the impact of the Bayh-Dole Act (which allows universities to patent federally funded inventions) “a near total disaster.” It charges that universities license patent trolls; that patenting restricts research; and curiously that fewer academic discoveries are transferred to industry because of Bayh-Dole.

We’ve listed in previous columns the facts showing that Bayh-Dole — built on the foundation of a reliable U.S. patent system — has been a tremendous boon to public health, wealth and general welfare, and won’t repeat that now.  See, for example,

Bayh-Dole replaced anti-patent policies similar to those now being advocated because they had utterly failed.  Unfortunately, this painful history is not known by the general public.

The challenge before us is to better communicate our case knowing that the next beanball may be headed our way.  Our opponents constantly present misleading, emotional arguments through the media.  If they succeed in undermining public support for the patent system it’s an ill omen for our future prosperity. Unlike baseball, determining which side wins this game for the hearts and minds of America has long term, real life consequences.

Perhaps we should take to heart how Frank Robinson, a Hall of Fame hitter, responded when facing beanballs.  “Pitchers did me a favor when they knocked me down. I wouldn’t let that pitcher get me out.  They say you can’t hit on your back, but I didn’t hit on my back. I got back up.”

It’s time to get back up.


About the Author

Joe Allen is a 30-year veteran of national efforts to foster public/private sector commercialization partnerships, and author of numerous articles on technology management for national publications. Joe served as a Professional Staff Member on the U.S. Senate Judiciary Committee with former Senator Birch Bayh (D-IN), and was instrumental in working behind the scenes to ensure passage of the historic Bayh-Dole Act. Joe has served as the Executive Director of Intellectual Property Owners, Inc., a trade association representing major R&D companies, he was involved in the creation of the Court of Appeals for the Federal Circuit, and he also served at the U.S. Department of Commerce as the Director of the Office of Technology Commercialization. From 1992 until 2004, Allen was with the National Technology Transfer Center (NTTC), becoming President in 1997. Clients included NASA, the Department of Defense, EPA, the Department of Veterans Affairs, and the Department of Commerce. Between 2004 until 2007, Allen was the Vice President and General Manager of the West Virginia High Technology Consortium Foundation. In 2008, Joe founded Allen & Associates to continue to facilitate public/private partnerships between universities, federal laboratories and industry.

65 comments
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  1. Joe-

    It is unbelievable that we have to deal with this level of extreme nonsense. Only the most irrational, intellectually dishonest, moronic individual would ever utter something so provably wrong. Bayh-Dole has been nothing but an overwhelming success. Those that say otherwise are simply lying in order to push their own agenda. The facts are overwhelming. The one I like the most is that prior to Bayh-Dole absolutely no drugs were commercialized as the result of university research. Since passage of Bayh-Dole there have been over 153. 153 – 0 should make everyone seriously question what the patent haters say, and that single fact is but the tip of the iceberg.

    It doesn’t surprise me that Tech Dirt so callously gets it factually wrong about Bayh-Dole. They are extremely anti-patent and rarely put any intellectual horsepower behind their positions. It is somewhat surprising that the Washington Post would do the same. As newspapers and magazines continue to struggle it seems that they publish more and more nonsense. How else could you explain the many patent bashing articles written by those who know nothing about innovation, patents, or business.

    Thanks for another great article, and thanks for leading the fight for so many years.

    -Gene

  2. Joe,

    Fantastic article. IPWatchdog has done a great job covering the anti-troll movement’s unintended consequences, one of which is the danger to university research. Thank you for adding to this dialog.

    Maybe Congress will temper the anti-troll fervor with any bill it passes.

    Steve

  3. Just in case you are interested, I have read patents and applications with intent to actually understand the technology behind them, and I have learned (quickly) that patent applications assigned to universities are usually head and shoulders above industry patents in terms of technological innovation. Univerities do not usually patent different shaped knurled flange brackets, but actual research and results. One of the most significant patents in my field is assigned to MIT, and the researcher involved went on to start a succesful company and obtain more (less worthy) patents.

  4. “It is somewhat surprising that the Washington Post would do the same.”

    Gene,

    Not to me. Having grown up in the DC area in my youth, the Washington Post was hardly an unbiased paper. My Dad used to call it the “yellow rag” and with good reason. The New York Times is similarly biased.

    Joe: Nice article. Now if only those of us beyond the “choir” would understand the factually unsupported bias of mouthpieces (that’s what they are) such as the Washington Post and Tech Dirt. (But then, why let the facts get in the way of promoting an agenda.)

  5. Benny-

    Excellent point. They type of patenting that goes on at Universities is exactly what we should want!

    -Gene

  6. Benny I have worked with several universities and agree with you.

    In general, I think everyone is way underestimating the power of the dollar. The only reason patents are still around is that there are competing interests with some of the big corporations. Pharma wants strong patent rights. Some software companies want strong patent rights. Some big corporations that do not depend on their innovation but market power want no patent rights. The giants are battling it out. We are lucky that Pharma didn’t get its way and split the patent world into pharma and non-pharma (which they are still lobbying for). I suspect that we have little to no power or voice in this battle. I think if we had a voice, then at least one of the new federal circuit judges would have been a patent professional. And, no, a government person does not count nor does a liberal arts professor that has taught a course on patent law.

    I would like to hear what the AIPLA has to say about these judicial appointments. Why aren’t we being represented? Get people in there that have done prosecution and litigation and real down and dirty work for 10 years. They aren’t going to come up with these hair brained opinions that we read everyday.

  7. Joe has also correctly noted that we in the “real” IP world need to do a better job at turning this “anti-patent” PR game around. Many of the anti-patent forces are very devious in spouting their anti-patent rhetoric, and hoping/expecting the general public to blip over the lack of factual support for this rhetoric (or that this rhetoric relies upon flawed studies in its support). Conversely, we in the “real” IP world need to expose these factually flawed anti-patent positions for what they are, namely nonsensical rhetoric.

    What I find particularly interesting is that many of the academics who profess to support this “anti-troll” legislation have an anti-trust background (even while professing to be IP law professors). I find that ironic given that the forces lobbying for this “anti-troll” legislation are the very Goliaths that these anti-trust academics usually despise. I guess the old adage “politics makes for strange bedfellows” applies here as well.

    Even more ironic to me is that at least some of these IP law academics are at universities that have very significant tech transfer programs. (One happens to reside in Palo Alto.) I’m not opposing free expression by such IP law academics, but I find it strange that universities with strong tech transfer programs would be comfortable with their IP law academics who espouse/support positions that would potentially undercut such tech transfer programs.

  8. EG-

    I think this is the same old problem over and over again. The forces who don’t like patents, or Bayh-Dole, or whatever, are very small in comparison to those who understand the importance. The problem is those that understand the importance are busy doing real work that drives the economy. Further, the patent haters have a natural connection with so many in the liberal media who are otherwise predisposed to being against monopolies or anything that makes money.

    I don’t know what we can do. Obviously, I will keep doing my part, but if we can’t get patent attorneys, researchers and scientists to at least be willing to send a letter to the elected representatives I don’t know what we can realistically expect to accomplish. It is so disheartening to hear this patent bashing nonsense, which is all based on lies.

    -Gene

  9. Analogies such as beanball are useful.

    If you look closer, the anti-patent gang consistently uses the “patent troll” and “tax on innovation” phrases. This is not unintentional. Terms like “troll” and “tax”:
    1) short, simple, to the point
    2) conjure up universal images that are distasteful

    Using these terms appeals to human emotion over rational thought. …and guess what – they work!!! When the average person hears “troll” or “tax” in a sentence, they’ve heard all they need to hear and have already passed a judgement. Truth is sacrificed in order to further their agenda.

    Since the battle is in the hearts and minds of the public, these 5-second emotionally charged sound-bytes are their weapon of choice – or beanball.

    However, let’s be honest here, fighting fire with fire and developing a 5-second counter-punch sound-byte is not easy. How do you convey the vital role that patents play in innovation in 5-
    seconds? That statement provides no imagery, no emotionally charged words like “troll” and “tax” provides. (If someone can come up with something – LET ME KNOW!)

    Instead, we need to employ strategy. Don’t try to WIN with a killer knock-out punch, but instead a counter-punch that the average person recognizes as sufficient and that both sides sound like they have something to say and that they require more information before passing judgement. If we can do that, then we leave the superficial 5-second arena and move to a real discussion – at which point we have the high ground.

    In other words, the key is to leave the 5-second arena and take the battle to an arena involving facts and real discussion.

  10. As much as I might like this particular analogy, it is not quite accurate.

    Unless of course you are playing a baseball game in which the Umpire is allowing (or otherwise promoting) the pitcher to throw beanballs at the “Patent’s are personal property” team. I liken the legislature, the rules-makers to the role of umpire. Given the series of legislative efforts (including but not beginning with the AIA), is it any wonder why people are not too eager to step up to the plate?

    And for the record, I was very active contacting all of my representatives during the AIA process.

  11. Jodi: As kind of a joke I made up for some of the patent hater professors: anti-patent entrepreneur (APE). It fits. A lot of the people that are saying bad things about patents are jumping on a bandwagon and their main interest is money or getting papers published. Judge Rader always emphasized that the patent right was limited in time and that the disclosure received from the inventor was worth the limited time of the exclusion. He would say that we owed it to our children.

  12. If we’re going with baseball analogies, I’m going to have to call you out on the spitball you just threw. You attack me, lie about me, insult me… and never once address (nor even MENTION!) the facts in my post about the dreadful results of your creation.

    So, if you want to “stand up” to folks like me, it might help if you started by actually responding to the facts. But, of course, you can’t, because you don’t have the facts. So you lie and insult. Sad.

  13. @Gene: Just respond to the patent haters with the overwhelming plethora of facts and evidence that patents (and the Bayh-Dole Act) do indeed work as intended.

    We cannot let the patent haters destroy our economy and country.

  14. “the facts in my post.”

    Mike,

    What “facts” do you actually mention? The only potential “fact” you cite is one Brookings study, and then, as is apparently TechDirt’s modus operandi, cite it completely out of context. What the Brookings study suggested is for university tech transfer to focus more effort on encouraging start ups versus licensing. Bayh-Dole is about commercialization of technology, be it by licensing, start up or otherwise. Your article proves nothing “factually” to support your point about Bayh-Dole. Instead, it’s nothing but your opinion.

    Frankly, you owe Joe a huge apology for how you slandered him, not the other way around. BTW, Joe also has the facts on his side when it comes to Bayh-Dole; you apparently haven’t bothered to read what he has posted on IPWatchdog and elsewhere. Prior to Bayh-Dole, commercialization of federally-funded research was an abysmal failure, and that included university research. Those are “facts.”

  15. As for any of the purported ‘studies,’ any such mention of the fats of those studies should be juxtaposed with such works by Katznelson debunking those studies.

    Mr. Masnick, you are the epitome of yellow journalism and the worst offender of non-law muckraking. You have absolutely zero sympathy from me.

  16. @Mike Masnick: how about you ask the people that publish papers and generate studies where their funding is coming from? That would be a good start. I think — if you cared– you would find out that some of the patent haters are being funded by big corporations. There is big money in tearing down the patent system. That isn’t the whole story, of course. I have been involved in this debate since the early 1980′s when the movement for open source software began. Now, what I see is this flood of new people that are ignorant of patents and innovation and science entering the fray. Some are funded by corporations.

  17. @Mike Masnick: and I used to debate on a board in the early 1980′s with the founder of the open source software. I have been in this debate a long time. Now, what I see are people that have entered that are just leaving off the benefits of patents and appear to want to just burn it down. Just two data points for you: (1) in the early 1980′s companies wanted employees (software engineers) to sign employment agreements where you do not disclose anything you did or how they did anything. If you did, you would be liable for essentially the lost profit of the entire company. And, (2) Microsoft built a massive research center because they needed patents.

    I have been involved with software/patents/innovation at many different levels, in many different roles for over 30 years. I can tell you that the haters are presenting a very unfair picture of the patent world.

  18. Mike-

    The fact, whether you choose to accept it or not, is that Bayh-Dole is an overwhelming success.

    It is YOU who needs to read the facts. Did you choose not to read the articles cited that are full of fact after fact after fact?

    The facts are on our side, you are the liar. Everyone with even a shred of intellectual honesty knows that to be true.

    -Gene

  19. EG-

    That is the problem with folks like Tech Dirt. They take everything out of context, or they outright lie. The only reason to take someone like Masnick at all serious is that there are actually lemmings out there that believe the lies he spews.

    -Gene

  20. MIke: I’m sorry to see that you feel that I personally attacked you– that was certainly not the intent. I simply tried to summarize the points in your article as succinctly as possible towards the end of the column, which I thought was done accurately. If you want to see the factual counterpoints on Bayh-Dole, simply click on the links to the previous articles that were listed.

  21. Personal attack on me, claiming this was written from “talking points that are somehow being passed around.” It was not. I recognize that you live in a world where “talking points” are a thing. I don’t. I write based on information and facts. You have a job to promote a certain position and to advocate for certain interests. You deal with talking points to advance an agenda. The only “agenda” I have is to focus on what I think is best for the world based on the data I’ve seen.

    The facts that you don’t mention, nor address: collaboration has decreased under Bayh Dole. Absolute fact.
    Bayh Dole drove many universities to set up tech transfer offices looking to cash in. Nearly every one of those tech transfer offices has been an abysmal failure. And, finally, that patent trolling operations like Intellectual Ventures have seized upon this to buy up tens of thousands of bad patents to aggregate into a bundle they can use to shake down others.

    None of those can be disputed, because they’re all factual. You didn’t mention, or rebut, any of them.

    As for the links, the first one is just Gene saying over and over again that it’s wonderful without any data. The second one actually has some data, nearly all of which is taken out of context, giving nearly all of the credit for things to Bayh-Dole despite little evidence that they’re connected. The biggest point you have, that drug research done by universities has been commercialized doesn’t actually help your case when you know the details. What you discover is that the pharma industry piggybacked on Bayh-Dole to basically get federal funds to do their basic research, mostly for follow-on drugs rather than actual important breakthroughs — and then they lock up the results of that *federally funded* research in insanely high drug prices.

    I’m sorry, but I don’t see how getting the taxpayer to pay for the R&D and then letting the pharmas lock it up so that people have to pay $10,000 for a pill that costs a penny to make is a good thing. Your mileage may vary based on who pays your salary, I guess. I find it shameful. If it makes you rich, I guess you disagree.

  22. With all due respect, that last post from Mr. Masnick is shameless “I know you are but what am I?” third grader dung.

    Anyone who knows patent law knows that such is trampled (and encouraged to be trampled) at such places that Mr. Masnick runs. To pretend otherwise is beyond insult.

  23. Okay, anyone got anything other than ad hominem attacks here? Gene, it reflects poorly on you and your community that you not only engage in such tactics yourself, but you appear to encourage them.

  24. Mike-

    The fact that you don’t see or choose to ignore the truth isn’t a problem with Bayh-Dole or university patenting, it is a personal problem.

    I didn’t personally attack you at all. I just pointed out that you are a liar. If you don’t like that type of accurate characterization then please familiarize yourself with the facts and stop passing off one lie after another as if it is fact.

    -Gene

  25. Mike-

    What reflects poorly is your reading skills. The facts are right there for you to read and you ignore them.

    My community is fine. They don’t like liars like you, and neither do I.

    Goodbye Mike!

    -Gene

  26. Gene, please substantiate your false claim that I am a liar or apologize.

    I have not lied here or elsewhere. You, however, in calling me a liar did exactly that. And you followed it up with ad homs.

    I know you don’t like me. That’s fine. I have no opinion towards you whatsoever. I just would appreciate you not lying about me or attacking me with baseless ad homs.

    And I’lll note, you still have not responded to the factual claims I raised. Why not?

  27. Mr. Masnick,

    I think you should look at your own house and put order to it before you clamor to Gene.

    What has been said about you and your site is absolutely true. It is beyond ridiculousness for you to posture as your attempting to do.

  28. Mike-

    Why don’t you first start by addressing the real facts, which is that Bayh-Dole and university patenting have been a complete, total and objective success and that your article is factually wrong?

    Obviously, you haven’t read the links cited for proof… please inform yourself as to the truth by reading the links above in the article.

    As for your egregiously inaccurate claim, or assertion or implication, that universities are patent trolls, not sure where to start to educate you if you are so willing to say something that ignorant. I guess it should suffice to say that it is impossible to be a patent troll if you are an innovator. Second, it should further suffice to say that patent trolls are bad actors who engage in extortion-like activity, as identified by the federal courts. Now wait for it… Universities are innovators and they don’t engage in abusive litigation tactics that are extortion-like.

    The problem with you is that you believe, again erroneously, that anyone who has a patent and chooses to license it or enforce it is a patent troll. The truth is you don’t like patents at all. That is a fine personal opinion to have, but when you cross over and try and pass off your personal opinion as fact that is where the problem is. Again, if you would just review the objective data on Bayh-Dole even you would have to come to the conclusion that it has been an objective success by any measurable, objective definition even if it doesn’t satisfy the nebulous, non-articulated, patent hating Masnick definition.

    As for your ridiculous assertion that research is deterred by patents, please inform yourself by starting here:

    http://www.ipwatchdog.com/2011/02/21/an-inconvenient-truth-patents-do-not-deter-research/id=15395/

    The evidence is not in your favor, as you can see. The reality is that only someone who is completely unfamiliar with what transpires at a University would every believe for a minute that “stronger patent laws allow researchers to rest on their laurels and use monopoly control to slow down any additional research.” So how much time have you spent talking with researchers at universities? How many times have you represented universities on patent matters? How many researchers have told you that they refuse to hold up a publication even if that means losing patent rights? I quoted you in that ridiculous statement just a few sentences back, so I’m just wonder how you came to that conclusion? Oh wait, you read a book and said that your readers should check chapter 8 to see that what you say is accurate. And that book is written by other proclaimed patent haters and you pass it off as objective proof? If that isn’t just laugh out loud funny, and pathetic all at the same time. The reality is that you have no proof except from the opinions of other patent haters. You offer no statistics on number of papers published, or the number of patents applied for, or the number of licenses issued, or the number of jobs created and business started through university technologies, or the amount university technology contributes to GDP. The articles above provide all that objective and verifiable information. We don’t have to rely to the erroneous opinions of those in an echo chamber. We have the truth and the facts. You are the one in the echo chamber without proof and you don’t apparently like me pointing out that your position is that of a charlatan at best.

    The truth is you know nothing about what you write about and you pass yourself off as an expert. You say wholly inaccurate things over and over again and pass them off as truth. You present no citation that anyone can follow up and check, in fact your cite in your most recent article that patenting harms university research is to another blog post of yours that likewise provides no evidence and nebulously says ‘check chapter 8 in a book written by two people who know more about the topic than I do.’

    Everything we say on IPWatchdog.com is backed up with citations to primary sources to readers can first hand read for themselves, which is the big difference between our websites. You ask your lemming readers to accept your word and nebulous conclusions. I prove everything I say with fact. You choose not to read the fact and pretend it doesn’t exist. That is a YOU problem, not a me problem.

    As far as my community, they get it. The only one here that doesn’t get it is YOU.

    So the apology that needs to be forthcoming is from you, not me!

    -Gene

  29. “None of those can be disputed, because they’re all factual. You didn’t mention, or rebut, any of them.”

    Mike,

    Not based on the article you wrote on TechDirt. All you cite is that Brookings study and you cite it out of context. Other than that Brookings study, no other supporting cites, nothing.

    “I’m sorry, but I don’t see how getting the taxpayer to pay for the R&D and then letting the pharmas lock it up so that people have to pay $10,000 for a pill that costs a penny to make is a good thing.”

    Mike,

    That statement is sheer sophistry, disingenuous and beyond the pale. University research alone won’t get a drug to market. It takes a pharma house $800 million to a $1 billion in product development and regulatory approval costs to get a drug to market. For you to say otherwise is utter rhetorical nonsense

  30. “It takes a pharma house $800 million to a $1 billion in product development and regulatory approval costs to get a drug to market. For you to say otherwise is utter rhetorical nonsense”

    You ought to associate yourself with some facts. http://www.ucpress.edu/book.php?isbn=9780520246706

    See, Gene, this is the sort of thing I’m talking about. Your community makes assertions that are clearly erroneous.

  31. “Why don’t you first start by addressing the real facts, which is that Bayh-Dole and university patenting have been a complete, total and objective success and that your article is factually wrong?”

    Success or failure is a statement of opinion, not fact. I would think that someone with your training would know that. And by every measure I’ve seen it’s been an unmitigated disaster for the reasons I cited.

    On the claims of the impact on research there are multiple reports highlighting the problems caused by Bayh-Dole. Here’s a detailed research report that showed that Bayh-Dole did very little concerning investment in research: http://www.sciencedirect.com/science/article/pii/S0048733307002107

    On the impact on actual researchers, they note that it’s been almost universally negative, according to a study in Nature: http://www.nature.com/nbt/journal/v27/n1/full/nbt0109-36.html

    And, if Nature isn’t your boat, then how about the other top journal, Science, which published a detailed analysis of how patent have deterred biomedical research: http://www.sciencemag.org/content/280/5364/698.full

    You know, facts.

    As for your claim that I said universities are patent trolls, I did not. I said that they’re enabling patent trolls. In other words, another comment, another lie.

    The facts are not on your side, Gene.

  32. Oh, and Gene, I find it amusing that you are now letting all sorts of anonymous people push ad hom attacks on me freely, but my comments are blocked until you approve them.

    Very big of you to stifle debate this way. So scared of someone challenging your religious faith in patents…

  33. “You ought to associate yourself with some facts.”

    Mike,

    Far more informed on the facts than the Goozner book you cite (who also has an “agenda”). Read the following comment on his book:

    “Goozner is one of those folks that does not believe the constitution is correct to provide protection to inventions through patents. Nor does he seem to believe in capitalism. Rather, he posits that pure open academic research is all that is needed to develop drugs. To him, the Bayh-Dole Act was a license for the pharmaceutical industry to steal from academia.

    He would have us believe that all the great drugs developed today really come from academia. If you believe that, then you believe that the internet, as we now know it, including Amazon.com itself, came 100% from academia. Well no Mr. Goozner, Netscape founders and developers of Mosaic did indeed develop their “inventions” at the University of Illinois, but it took good old capitalism and $$ to turn all that into sophisticated products and tools. That is called fundamental research, basic research, being developed into marketable products. The goal of academic research is not to develop marketable products, it is to further knowledge. The Bayh-Dole Act bridged that basic research to the marketplace and last year alone, “academia” made $4 billion from license fees it received from those crooks that stole their technology and passed it off as their own after faking an $800 million investment.

    The tens of thousands of industry scientists that spend decades developing drugs based on technology licensed from academia should be insulted by a book claiming they had no role in developing the product. I know I am, and I was in academia once.

    Lots of things in his book are just plain wrong. Too many to list. No need to, because his fundamental thesis is wrong to. I don’t question his telling of all the history though, just his conclusions from it.

    Lets take the $800 million. He tells us it costs only $100 million and not $800 million to develop a drug. Well, that is not quite what that number means. The $800 million is the cost for the one drug that made it to market, and the 50 that failed in research. That is called an absorbed cost. You see, the vast majority of drugs that are developed never see the pharmacist’s shelf. I worked on one such drug that was abandoned after my company spent over $50 million developing it. Now if you are a stockholder, you think you might want a return on your investment. That’s one successful drug is it.

    If we follow Mr. Goozner to the end of his diatribe, we would find that he literally expects the entire drug industry to be a non-profit industry. Well then, since Amazon.com was created from technology that came from academia, it should declare non-profit status and give away all its profits.

    What could have been a strong calling to task on the pharmaceutical industry turned out to be nothing more than the fringe, almost socialist, views of an anti-capitalist.

    Finally, for an economist I was amazed that he managed to oversimplify how the pharmaceutical industry makes development decisions with all his “me too” drug conclusions. If I have to explain that one I am afraid I am going to have to hop on my pro Posner/Pareto/Coase pedestal and preach, which I don’t want to do. That takes me back to my first statements. This author is biased against patents, capitalism, and a little uninformed about science (when he tried to be one, he made it obvious why he is not one). But I did like the walk through history, enough to ignore the misleading filters through which me wanted us to view that history. I gave him an extra star for that one. If you are a social engineer or ignorant, you might like this book. If you are at all informed, it will leave you like a parody, amused and nothing more.”

    Again, biased opinion is not “facts.”

  34. Mr. Masnick,

    Just because you run a wild west system of comments does not mean that Gene has to. Your responses are full of the ad hominem that you claim is said against you. Stifle? religious faith? I mean, take a serious look at your posting style. Then get real.

  35. Mike-

    I wouldn’t expect you to understand, but comments with multiple links are held in moderation queue for me to approve because they are normally indicative of spam.

    As you can see your article accusing me of holding your comments in moderation posted automatically.

    I actually even went in and dug one of your comments out of spam so that you wouldn’t accuse me of blacklisting you or any sort of thing. But true to form you jump to conclusions before verifying truth! I guess I couldn’t do anything more to prove just how you rush off with unfounded accusations before doing even basic investigation.

    As for success or failure being a statement of opinion, actually no, it is not. If you would actually review the facts you would have to conclude I am correct and you are wrong. Bayh-Dole is an objective success and there is no other way to characterize it accurately. So why won’t you review the facts? I’ve given links and they contain citation and further links for you to review and investigate the truth. What exactly are you afraid of?

    The facts are on my side Mike, they aren’t on your side, but hey, they really never are and that doesn’t stop you does it?

    So I guess I’m suppose to respond to what you post even though you NEVER respond to the overwhelming and uncontroverted facts I pose to you. I think I will wait this time for you to actually respond rather than continually trying to get you to understand what you seem wholly incapable of understanding. So I stand ready and willing to debate you, but it is now your turn to address what I have raised in the articles and the facts asserted therein. Of course, we all know you won’t do that… oh well… I guess that is a sign of being utterly defeated.

    -Gene

  36. I do want to say one thing about “did very little concerning investment in research.”

    Again, only someone who knows nothing about Bayh-Dole would ever make such a claim when trying to demonstrate Bayh-Dole has been a failure. Masnick says that as if the point of Bayh-Dole were to create more investment in research. That was not the point of Bayh-Dole at all. The point was that prior to Bayh-Dole virtually no university funded research was reaching the marketplace. That is an undeniable fact. The point was the federal government was paying for the research and the products of the research were not doing anyone any benefit. So the system was created to push the products of federal research into the marketplace. Bayh-Dole has been objectively successful beyond anyone’s wildest imagination at its stated goal. Federal research is getting into the marketplace all the time.

    Fact: prior to Bayh-Dole no drugs stemming from federally funded university research had reached the market.

    Fact: in the 33 years after Bayh-Dole some 153 drugs stemming from federally funded university research have reached the market.

    Those are inconvenient truths for Masnick and the patent haters, but they are the truth. The links above in the articles go to painstaking detail demonstrating all the benefits. The many thousands of start-up businesses created, the many tens of thousands of jobs created, the billions of dollars in GDP added to the economy. Those are all measurable successes and only the most ignorant individual would ignore those and claim Bayh-Dole has been a failure.

    The truth is the Masnick’s of the world hate patents, period. They approach every debate through the lens of how can we use this to destroy the patent system. They then either lie or manipulate facts to match their predetermined narrative.

    Bayh-Dole was not meant to increase investment. It wasn’t intended to increase cooperation or publication (which it actually has, more on that in the coming days). The ONLY way Masnick and those who share his ideology can ever claim Bayh-Dole is a failure is by setting up a ridiculous straw-man argument. Bayh-Dole must be a failure because we don’t have cold fusion or perpetual motion machines! Hah! Calling this type of straw-man argument asinine is an insult to asinine arguments everywhere.

    The truth is if you actually know what Bayh-Dole attempted to do you have to come to the conclusion it is an overwhelming success. Only by twisting and manipulating things to define an issue that Bayh-Dole didn’t concern itself with can you ever get to the Masnick point.

    Pathetic!

    -Gene

  37. At Mr. Masnick’s site, if on searches under the key word ‘patent’, there are ZERO articles of a positive nature about patents in the five pages of results.

    Zero.

    And he has the nerve to cry like a little sissy girl here?

  38. Mr. Masnick:
    I do not doubt your sincerity and beliefs in what you read. You report what you read – and I do not fault you for that. The major problem, however, is that the sources you cite purport to have empirical facts, but in fact do not. At the very least, you ought to have done some research and should have reported on sources that show the flaws in the works you cite. Just because Science magazine publishes an article does not make its content “factual.” Heller and Eisenberg allege myths. Read an analysis of their myths at http://www.ipwatchdog.com/2013/05/09/a-patient-centric-look-at-gene-patents-2/id=40119/ and more detailed debunking of their thesis at http://www.bio.org/sites/default/files/TheMythoftheAnticommons.pdf . Myths are not facts.

  39. @Mike Masnick: I didn’t disparage you in my posts and raised very concrete questions. I noticed that you just skipped them. Well, please try to address my concerns.

  40. Ron (and others),

    You are being too kind. As I mentioned, Mr. Masnick’s site is overrun with anti-patent postings. This is not due to any oversight. This can only be done on purpose. Had Mr. Masnick made the error once, and then took steps to correct his view, that would be one thing. This is quite another.

  41. Anon,
    You probably have a point here – Mr. Masnick may not be entitled to the benefit of doubt as a mere technology reporter. His blog is supported by large adds for “fighting the patent trolls” and he himself has been financially supported by an organization that routinely advocates “open source” principles against IP protection. That advocacy organization is the Computer & Communications Industry Association (CCIA) which asserts that patents hinder innovation incentives, claiming that “In information technology, other incentives dominate, and the disclosure function does not work in an environment of hundreds of thousands of questionable patents. As result, patents are of greatest value to trolls, who are able to capitalized on the weaknesses of the system” (see https://www.ccianet.org/issues/patents/ ). This very statement indicates a profound misconception of the economic function of the patent system – it is mostly for incentivizing investment in new inventions, not merely to incentivize “disclosure.” The CCIA, of which Google is a member, paid Mr. Masnick to co-author his reports “The Sky Is Rising!” ( http://gigaom2.files.wordpress.com/2012/01/theskyisrising.pdf ) and “The Sky Is Rising 2” (http://s3.documentcloud.org/documents/561023/the-sky-is-rising-2.pdf ).

    There is nothing wrong with paid advocacy. I suspect, however, that in Mr. Masnick’s case, it would be hard to separate from his work as a paid advocate for the anti-patent IT community his blog posts asserting and citing “facts”. With this understanding established, I still value the substantive exchanges here with Mr. Masnick, particularly if he would respond to the specific citations and challenges of his “facts.”

  42. And BTW Mr. Masnick, since you have established in your “The Sky Is Rising” studies cited above the meteoric and robust industry and commerce growth in electronic media, electronic gaming, and video technologies – all of which are enabled by large investments in software-based inventions, I hope we would not hear from the likes of you that “The Sky is falling” because software patents hinder and suppress innovation.

  43. Mr. Masnick,

    I am somewhat surprised that you have responded on an open forum like IPWatchdog. I have attempted to post on your Techdirt website several times but my posts never showed up or were somehow deleted. Fortunately, I saved a copy of the last one that I tried posting on “Top Venture Capitalists Demand Real Patent reform put to rest myth that VCs love patents”:

    I am a software developer of a sole properietary business. I worked in the industry for some time, came from the corporate world. I had an idea but needed investors to get my company off the ground. I found that when I talked to investors they asked me about when competitors found out about my idea, how was I going to compete once my idea got out there. They loved my idea and said it would likely make money but expressed concerns that my idea was simple to copy and that if I did succeed that some large corporation would likely copy it.

    I mentioned I would continue to innovate, keep growing, and grow my user base faster – but several of them pointed to examples of companies they either had previously invested in or that they knew of where they had eventually failed and succumbed to companies like Google that copied the main ideas and because of their reach and leverage were able to squash the startup. I tried pointing out that today is different and that as long as I grew faster that I could stay ahead. They absolutely wouldn’t buy it, they said that my idea was too simple and would almost certainly be copied. Another expressed concerns over my former employee (sorry, I can’t name them) and that since they were in the same business, that they would likely adjust their business to quickly copy me. They didn’t want to invest because they feared their money would be spent, we might last a couple of years and even be successful that that eventually we would succumb to Google’s massive leverage and inherent reach.

    After several such meetings with investors, I licked my wounds and started planning for how to overcome these specific objections (there were other objections but generally either not common or not insurmountable). So I resorted to filing a software patent – didn’t want to and after having read so many of my fellow developers hating patents, but I couldn’t find an alternative. In fact, my mentor pushed me towards filing software patents. Sure enough, now when I approached investors, they were much more receptive (even in one meeting I entered on no sleep and BADLY fumbled my demo and presentation but told me none of that mattered when they saw my patent filing).

    Anyways, now I had the investors much more on my side except for one thing – I had filed my patent in Canada – not the U.S. Now they pointed out that Canadian patents are useless. It wasn’t because Canada didn’t allow software patents (my patent lawyer pointed out the small modifications to overcome those objections) – but rather the court system itself does not favour the patent holder. So I figured no problem, we’ll just file another one in the U.S. Except my patent lawyer pointed out that we were past 1 year – so I either to had to come up with an extension or further refinement to my idea or another idea altogether.

    Anyways, I’m working on that, but in the meantime, my experience is that patents at least get me in with investors – contrary to your article.

  44. Perhaps this note belabors the obvious, but consistency does not appear to be one of Mr. Masnick’s strong points.

  45. Jina @43,

    Here’s the problem with your rant up above at #43 …




    Nothing.
    And it’s not even a rant.
    But in the war of Goliaths versus Davids the dark arts of rhetoric (like labeling your story a “rant”) is considered fair game, like labeling property owners (patent owners) “trolls” is deemed fair game, like silencing you story on dirt-filled web sites such as MM’s is held up as fair debate and like poisoning the well of every honest debate with shill-sourced ad hominems and other emotional triggers is foisted as being fair game.

  46. Jina @43,

    Here’s another problem with your “came-to-Jesus” story up above at #43 …




    It’s too long.
    And even self-proclaimed software types have short attention spans (ADHD).
    They’ve been trained to think they are above it all.
    They are not.
    They’ve been trained to ignore logic and facts.
    The smarter they think they are, the quicker they fall.
    Vanity and greed are still man’s most vulnerable weak spots.
    Shills who are well schooled in the dark arts of rhetoric know that.
    Works every time.


    For every one software developer such as yourself who learns the hard way
    (and finally has a come-to-Jesus moment in realizing that patents, much as such things are despised for the long term, are necessary parts of our dog eat dog world –watchDog eat blindDog world?) ,
    their are hundreds of newly minted software developers who fall for the fairy tales that the Goliaths out there feed them.


    When they finally realize they should have patented Visicalc, or some other break through advance in the useful arts part of software, it’s too late. They had already bought into the illogical narrative about software wanting to be “free”.

  47. Does software truly want to be free?


    BS on that.
    The only people who want things to be free are slave owners.
    They want other people to work for free.
    They want to take the fruits of the labor of other folk for “free”
    and then turn around and make a profit on it –without having to pay for it.

    And why not?
    That’s good “business”.


    The fools in the game are the software developers who buy into the lie of Arbiet Mach Frei
    –that by giving away their work for free they will find their just reward in software heaven.


    The battle between those who favor voluntary servitude
    and those who favor fair pay for good work
    will never end.


    The only question is which side do you intend to stay on?
    You work product (software) wants to be free?
    Well good luck with that one when you go to the market and need food to feed your family.
    Vegetables want to be fee.
    Bakery products want to be free.
    I just had a conversation with a fruitcake that whispered that to me.
    Yo software smarty pants, sneak me under your trench coat and take me home. I want to be “free”. ;-)

  48. Step back,
    Have you ever used a computer running Linux operating system ? (Yes, I know Linus Torvalds has 18 US patents, but that doesn’t make the OS any less free).
    I personally think all software should be protected at least by copyright, but in actual fact there is a lot of free software in the public domain which is mainly written by people who have other means of earning money.

  49. Benny,

    You do not appear to grasp the import of the situation. In the current system, anyone with a patent eligible invention can choose for themselves to dedicate that invention to the public. What we have here is a concerted effort to force a belief system that removes this choice for everyone, based on a minority’s philosophical viewpoint. The entire ‘other means of earning money’ is a non sequitur to attempted removal of each inventor’s ability to choose to have protection.

    As for copyright protection, that too is a conflation that only obscures what is being attempted at law. I do hope you realize the difference that copyright protection and patent protection provide in relation to each other.

  50. Benny,

    I use a huge amount of “free” application programs and “free” internet services (including Gene’s blog here) with an understanding of the enormous amount of work it takes to make all this possible and I am highly appreciative of efforts by Gene and others to provide the public …

  51. Anon,
    You say that “anyone with a patent eligible invention can choose for themselves to dedicate that invention to the public”. It may be my imagination, but the choice to make the invention freely available seems to be far more prevalent in software than in other fields. As someone who has written software and worked closely with professional programmers, I am also aware that the vast majority of software products are not, in fact, patent eligible, so copyright is the the best protection you can get.
    I don’t subscribe to the belief that a process can’t be patented if it is implemented in software.
    Step back, I was referring in my post to “open source” software, where the actual code is free to modify and re-distribute, not to “free to use” software which you mentioned, and is covered by end user license agreements which usually prohibit reverse engineering.

  52. Benny @51

    As is typical in blog conversations,
    we appear to be talking past each other.

    Just as “open source” is not synonymous with “free to use” software,
    the term “patent eligible” –as it has been recently used in the USA patent community–
    is not synonymous with “ultimately patent worthy” (under sections 102, 103 and 112)
    and is instead associated only with the legal issues that arise under section 101 (of 35 USC).

    Also, as I have repeatedly warned here, the words “software”, “computer” and “innovation” are highly ambiguous such that two people using these same terms can easily be talking past each other.

    Moreover, too many anti-patent commenters here assume that patent practitioners such as Gene, myself, etc, have no effing knowledge about software and programming despite the fact that Gene is managing a high traffic and fairly sophisticated blog site. Well guess what, D’Oh. We do code. And if you prick us we do bleed.

  53. Step back,
    You say “We do code”. Now be honest here – if you came up with a neat little algorithm, would you run to protect it under patent or would you freely share it with your peers? After all, selling software is not how you earn your daily bread. Since many engineers share ideas among themselves, and since software can be easily given out without transfer of tangible goods, the engineering fraternity (re Linus Torvalds, author of Linux) have created an environment where people EXPECT software to be free range. No wonder they cry foul when sometimes they find the box is locked.

  54. Benny,

    You keep on missing the point – so much so, that it appears to be purposeful. Your comment at 53 includes a subtle clue: “created an environment where people EXPECT software to be free range“.

    The problem is not that some people have created such an environment, The problem is that such an environment is being sought to be enforced universally and in opposition to the current patent law. Whether or not “more prevalent in software than in other fields,” is not a license to force a philosophical model on those that do not want to partake in that view. Step back’s jest about other items ‘wanting to be free’ perfectly fits the mindset you think is acceptable. There are full political schools of thought on shared communities – communes – those have not worked out too well in the real world.

    Your unwillingness to separate the anti-software mantra from an intelligent discussion of the law creates a repeating effect here. You are not listening.

  55. Anon,
    You continually read into my posts content which is not written.
    I DO NOT oppose software patenting or protection.
    I DO respect patents AND copyright – to the extent that I do not illegaly download protected files, even music files.
    I am simply stating facts from the viewpoint of the manufacturer/patent holder/engineer.
    The comment about people “expecting software to be free” is not a “subtle cue”, as you call it. It is a statement of fact. Your job is to convince society that this is not a state of affairs that should be enforced, but that is not the same as lessening its’ extent.

  56. Benny,

    And you consistently miss the point that your posts are not capturing the important issues. The ‘facts’ that you are stating serve to obfuscate those issues. My ‘job’ is not to convince society of anything – you are confusing ‘facts’ and the use – or spin – of those ‘facts’ in attempting to do something. By consistently stating ‘the facts’ as you are doing, you are part of the problem. Granted, you personally may be a fine upstanding citizen with the upmost respect for the law as it is now. But your posts paint you as a tool. Perhaps unwitting, perhaps not. Your unwillingness to accept the differences pointed out (e.g., the forum under discussion is law) tend to make me think that you are not so unwitting.

    It really is as simple as one philosophical view being pushed on everyone. While you say that you personally are not opposed to software patenting or protection, others certainly are. Those that are push ‘the facts’ as you are pushing are the same that are certainly trying to push a no-choice option on everyone. Your inability to distinguish the legal difference between 101 and 102/103/112 demonstrates this lack of understanding or a critical legal battle – perhaps THE critical legal battle of our time.

    One way of pushing legal change on software patenting is to attack the balance of a particular art field. The problem with that is that patent law (on almost all levels) is not geared to an art field by art field view – especially with a ubiquitous art field like software which shows up in almost every other art field. Make no mistake – the patent system is under attack.

    To pretend otherwise is sophistry.

    The subtle attack on balance is a two-prong attack: attack the supposed merits of the patents granted (so many ‘bad’ patents out there that all patents ‘must’ be bad) and attack the supposed risk (the “Troll” problem is a runaway epidemic). If even a lip service subjective difference can be driven, then change is more easily effected. Objective truth is a causality in such a battle.

  57. 53 … Step back, … You say “We do code”. Now be honest here – if you came up with a neat little algorithm, would you run to protect it under patent or would you freely share it with your peers? After all, selling software is not how you earn your daily bread.

    “Little” algorithm?
    I’m not sure what you mean.
    Like many software-savvy computer users, I have a compilation of algorithms that I wrote, many of which I use every day to speed my work and/or blogging activities, where that compilation of algorithms interweave with one another to form a complex set even though any one of them might at first glance appear “little” and simple. First blush appearances can be extremely deceiving.

    What do I do with them?
    I keep most of them as my personal trade secrets.
    Why not patent them?
    Well, first because they are written to service only own peculiar work habits and not those of the general market.
    Second, the mass populace has no need for these insular and esoteric algorithms.

    Patenting something is very expensive and a lot of hard work.
    So before anybody goes off to prepare and file a patent application they should do a prudent business analysis that asks the critical question of what the expected return on investment (ROI) is going to be. If your expected return is not going to be way greater than your investment, don’t do it (unless you want a patent for vanity sake).

  58. An original intent of our patent system (in contrast to the English system) was to want to have people patenting their inventions, and to expressly NOT have an expense-driver for not patenting.

    This is because what may appear to an individual inventor to be merely some small item, ‘not worth the time and expense to patent,’ may provoke someone else to an even greater invention.

    Unfortunately, we have allowed the system to become the Sport of Kings that increases the value of Trade Secrets in comparison. The America Invents Act did not help by augmenting Trade Secret protection in the form of Prior User Rights – and this goes hand in hand with weakening the power of patents by removing the stick and depending on a smaller carrot.

    The stick, of course, was that if you did not patent your invention (or otherwise share that information with the public – a patent was not expressly needed to avoid the stick), and if someone else also made that invention and was willing to share it, that person’s patent would (in my mind rightfully) prevent you from using what you had decided to hoard to yourself.

    We should be making patents stronger – not weaker.

  59. A general observation (and note to Ron K):

    I agree with you that it would be interesting to have those of other views engaged in a dialogue. However, as we see here (and very often elsewhere), those proponents tend to disappear when the conversation turns against their views. To me, this is just an indication that such proponents are not really interested in a dialogue in the first instance, and instead are merely engaged in sound-byte advertising to the general populace. Diligence and fact-checking is actually a detriment to such activity. True substantive exchanges are thus rare. But given the content of the websites put forth by these paid advocacy groups, this is not altogether unsurprising. Disappointing, yes (especially when Mr. Masnick rides his high horse), but surprising? No.

  60. Anon,
    “It would be interesting to have those of other views engaged in a dialogue…”
    How about you or Gene writing an article or two for Design News, or EE times, or EDN, or any of the trade newsletters/magazines? Not many engineers or inventors read your blog. You are mostly preaching to the choir.

  61. Anon-

    I agree. I also think they disappear because they at best have first level knowledge on the issues on which they pontificate. In the case of Masnick, he has no independent knowledge. He merely parrots what he reads elsewhere and then makes vague, over broad statements that are not supported by the reference he cites. Then when the discussion goes beyond his sound bit he (and so many others) don’t have the familiarity with the issues to actually engage.

    I notice Masnick went silent here when it was pointed out what the purpose of Bayh-Dole actually was. Once you know what Bayh-Dole intended to accomplish there is but one inescapable conclusion — Bayh-Dole has been overwhelmingly successful. Anyone that suggests otherwise is simply incorrect and not very well informed.

    -Gene

  62. Benny,

    Your post at 60 only underscores a previous criticism of you that I have posted: the forum under discussion is law.. A very specific type of law to be sure, but law nonetheless.

    You keep on forgetting that. Also, your post seems to imply that us lawyer types do not understand the engineering world. That too, is a fallacy. I know that I and many have deep experience in both worlds. In fact, I have nearly twenty years experience in engineering and management of engineered products before I switched to law.

    Lastly, you are included in the aim of my post at 59 since you too go silent when I bring up counterpoints and the discussion goes in an unfavorable direction from your posts. Please note that I do not think this means that you are necessarily a ‘bad’ person,’ but do recognize that many people in the discussion really do want to only have one side of the discussion considered, and that a full and thoughtful two-sided consideration (with both law and technical aspects fully vetted) is simply not desired.

  63. They are not here to discuss, they are here to find chinks in the armor.

  64. Anon,
    Again (and again) you unreasonably interpret my posts. I put forward my viewpoints, and read yours. Isn’t that a discussion? I will not belabour a point, especially if it has been pointed out to be in error. You call this “going silent”. It might be agreement.
    As to my post at 60 – remember, you are not the end users of the patent system (unless you are also inventors). The users (such as myself) has less knowledge than you, and it is not surprising that they form incomplete impressions unless YOU – the patent law experts – point to the right direction.

  65. Benny,

    Sorry, but you are incorrect in what you say.

    First, your statement of my being unreasonable in ‘interpreting’ your posts. I am not ‘interpreting’ your posts, nor am I changing any meaning you include in your posts. I am commenting on them and pointing out how they fit into the big picture. There is nothing unreasonable in what I have posted. You may not like the big picture, nor your role in that picture, but my posts have been fully accurate. I have pointed to the right direction on this. Yet you continue top ignore that direction. Of course, you are free to point out any inaccuracies and set the record straight. However, your posts do not do that. As I pointed out to you, you seem to want to operate in the wrong arena, and incomplete arena of only technical. As I pointed out, you are not in that arena.

    And remember, your focus on the end users of the patent system does not mean that you get to ignore the fact that the patent system is a legal system. That is what it is and you must accept that, or remain in error.

    Second, silence is not presumed to be agreement. Why would you ever think that? “Might be” is not good enough. You reading my points and being silent is not a discussion. Especially when subsequent posts are made (after the bit of silence) that only state again in error what was stated previously. If, as you want me to presume, there was agreement, then why is there so often a recycling of the statements made previously in error? No, Benny, the proper discussion is an acknowledgement of the understanding and an incorporation of that understanding in any further discussion. As I posted above, Mr. Masnick’s site is replete with error and misunderstandings and there is no attempt whatsoever at any understanding, acknowledgement or incorporation.

    Jodi at 63, unfortunately what you post has been confirmed with personal experience.

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