Call to Action: Amici Briefs in ACLU Gene Patent Challenge

Recently I received an e-mail with a link alerting me to something posted on the 271 blog relating to Bilski. The video (viewable on the 271 blog) is taken from a movie about World War II that focuses at least in part on Adolph Hitler. The video posted is from a scene that appears to be taking place in Hitler’s bunker, and seems to be toward the end of the war when only bad news about the Allied advance was being given to Hitler. This video seems to be rather popular on the Internet because since it is not in English subtitles can be inserted to turn the clip into a tool to promote whatever is desired by those creating the derivative work. In this particular case the subtitles added relate to the Bilski case. I have been conflicted by how to handle this. It seems it would be of interest to many patent attorneys following the Bilski matter, but I am uncomfortable about using any Nazi or Hitler references in the same breathe as patentability.  There is simply no comparison and it seems there is something not right about using the most hated man in human history in this way, or in any way, suggesting even tongue in cheek that the atrocities of the Third Reich in any way are comparable on any level to the ongoing patent rights debates. Nevertheless, there is something that was inserted into the end of the video that does deserve some attention. There is no denying that the assault on intellectual property rights, particularly patent rights, is a major problem and if it continues innovation will be seriously and negatively impacted. There is also no denying the fact that those boldly challenging patent rights are anti-patent and would prefer no patents at all. Therefore, while your particular innovations may not be challenged directly the assault on patent rights in one sector is and should be a concern for all innovators and patent owners. It is time for us – all to stand up for innovation and take action.

At the end of this video it states the following:

First they came for the rights of so-called “Business Method” patent holders, and I did not speak out because — that did not concern me.

Then they came for the rights of the Software and Medical Technology patent holders, and I did not speak out because — that did not concern me.

Then they came for the rights of all Process patent holders, and I did not speak out because — that did not concern me.

Then they came for my patent rights, and there was no one left to speak for me.

This is a play on a poem attributed to Pastor Martin Niemöller relating to the German intellectuals ignoring the rise of the Nazi party. Again, the struggle for strong patent rights is nothing compared what ultimately played out in Germany in the 1930s and 1940s, but the broad morale of the story applies in many contexts. There is no justification for sitting back and watching injustice or the dismantling of rights.

[Bio-Pharma]

The famous words of Pastor Martin Niemöller explain in real terms how difficult it is to stand up for right when it does not directly impact you. It is easy to believe the fight is for someone else, why go looking for trouble or a confrontation, and without a dog in the fight there is no reason to expend the time, money and energy necessary to get involved. But does anyone really believe that if the anti-software advocates are successful in stomping out business method patents, software patents and gene patents that they will stop there? Of course not! To believe the ACLU is benevolent and only wants what is in the longer term best interest of society, science and innovation, is in my opinion naive beyond belief.  Even if the motives of the ACLU we in the patent and innovation communities know that the greater good is forwarded by providing exclusive rights for a limited time, NOT by stripping rights or making them impossible to obtain in the first instance.

For those who do not have gene patents or diagnostic method patents it would be easy to ignore the ACLU challenge in the United States District Court for the Southern District of New York. But if you have not taken a look at the complaint and Judge Sweet’s ruling you really must take a good, long and hard look at what is going on. The First and Fourteenth Amendments are alleged as grounds for invalidating patent claims, never mind that there is no support in the Patent Act for such an action. While both Constitutional claims are troublesome the First Amendment claim is both the most disingenuous and most troublesome. What the ACLU is claiming is that patents control thoughts and since the First Amendment protects freedom of expression patents are unconstitutional because by controlling thoughts the government is compromising freedom of expression. The argument is ridiculous. Does anyone think the same people who gave us the Intellectual Property Clause (Article I, Section I, Clause 8) and the First Amendment thought that the granting of patents, which is a power specifically granted to Congress in the Constitution, is unconstitutional? No, but that didn’t stop the ACLU from grandstanding, making a frivolous claim and trying to dismantle the entire US patent system.

The most alarming thing is that Judge Sweet, the liberal 87 year old Judge assigned the case, issued a decision explaining there is no justifiable ground to proceed with the case, but because important constitutional rights are at stake the case can continue.  See District Court Rules ACLU Gene Patent Challenge May Proceed. So if this case is not on your radar screen it needs to be on your radar screen because this is only the tip of the iceberg. If the arguments of the ACLU prevail there is no reason those same arguments couldn’t be used against any patent owner. All patents are exclusive rights by nature, so if gene patents violate the First Amendment then all patents will violate the First Amendment. While there is little doubt that the Federal Circuit will do the right thing should it get that far, it should never get that far, but with Judge Sweet making the decisions it just might. Imagine the emboldening of the radical anti-patent crowd with a decision from an Article III Judge that patents violate the First Amendment. The thought is chilling. This is not a fight for Myriad, this is not a fight for the Patent Office, this is a fight that affects all innovators and those who use the patent system. We simply cannot allow the ACLU to prevail and a massive show of support is necessary to make it unequivocally clear that this is not a Right vs. Left dispute, this is a right vs. wrong dispute.

Back in October 2007 when Dr. Tafas and GlaxoSmithKline were fighting the good fight to stop the claims and continuations rules from being implemented I issued a Call to Action. I said that if you have a patent line item in your budget you absolutely need to get involved and let the Eastern District of Virginia know this is not a dispute prompted by a disgruntled inventor and a rouge company, but rather this really mattered to all types and sizes of companies regardless of industry. Right now this is another one of those moments. If you have a patent line item in your budget you absolutely need to take notice of what is going on in the Southern District of New York and you need to at least consider getting involved and filing an amicus brief in support of Myriad Genetics and the Patent Office position. The district court needs to hear from all industries, independent inventors, small businesses, start-ups and established businesses of every size. A Constitutional challenge to patents based on the First and Fourteenth Amendments affects every inventor and patent owner.

Sure, you can wait for Judge Sweet’s decision on Summary Judgment, but what if he does the unthkinkable and actually rules in favor of the ACLU, which his decision on the Motion to Dismiss suggests in likely? Sure, you can wait for everything to go wrong, hope for the best and then consider filing an amicus brief at the Federal Circuit. But do we really want an organization like the ACLU to enjoy this victory? Do anti-patent folks need more ammunition or emboldening? A victory at the district court level will irrevocably affect the hearts and minds of those who think all patents are garbage and violate free market principles. Once this cat is out of the bag it is going to be extraordinarily difficult to get it back into the bag and radicals will forever throw this decision into the mix, and will use it to sway public opinion against patents. That does no good for anyone.

I firmly believe that the risk of an ACLU victory at the district court level is real and substantial. Perhaps seeking leave to file an amicus brief is a fools errand, but for the amount of money it would cost to prepare and file an amicus brief shouldn’t every funded company want to get their point of view out into the open? We can flood the district court and demonstrate that this is not about gene patents, it is about the forward march of innovation. This is not about saving lives, it is about whether people have a right to a free or cheap test that will tell them about what MIGHT happen in the future. Overwhelming evidence is required to show that innovators, including independent inventors, businesses and Universities, will be negatively affected by eroding patent rights. The district court needs to be inundated with evidence and argument that puts into context what is at stake. If patents can be challenged under the First and Fourteenth Amendments then all patents will be so challenged, rights will be tied up for years, investors will retreat causing starvation of needed capital. Without solid, reliable patent rights small businesses who create the bulk of new jobs will simply not be able to get access to the resources they need and all that the Department of Commerce and the Patent Office doing to attempt to address the backlog and actually issue patents will go for naught. If nebulous and unsupported Constitutional grounds can be raised to challenge a patent all patents are at risk, and the argument about post-grant review becomes meaningless because anti-patent advocates will file a blizzard of challenges in liberal leaning district courts across the country.

Patent attorneys and litigators reading you MUST contact your clients who have a budget. You know who they are, you know the clients that build their entire enterprise on patent rights. You MUST get in touch with them and explain to them the larger issues as stake. Please also point out that the overwhelming amici support for Dr. Tafas and GlaxoSmithKline made it clear that the dispute was industry independent, and that fact did not go unnoticed by Judge Cacheris. Consider collecting clients into a group and seek leave to submit a single amicus brief on behalf of multiple parties. This will reduce the cost and still allow for facts and truth to be inserted into the record.

If anti-patent activists are organizing and the ACLU, with its seemingly limitless budget to pursue their own agenda, is becoming involved in patent matters then it is time for patent advocates to unite and not allow a challenge against one part of the industry to destroy that industry and create precedent that can and will be later used against all of us. While an amicus brief would be extremely helpful, at the very least write your Representatives, Senators and Executive Branch Officials. This is an issue of great importance to the US patent system, and at the very least innovators need to stand together and come out strong publicly. Now is not the time to sit on the sidelines. Too much is at stake.

I am happy to publish any letters or any filed amici briefs in support of strong patent rights, giving appropriate props to attorneys and businesses willing to stand up and fight.

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62 comments so far.

  • [Avatar for Scott Dunn]
    Scott Dunn
    December 2, 2009 11:10 pm

    Gene,

    Your points are well taken. I can see there is room on both sides of the issue, I just happen to find more evidence for the other side, against software patents. True enough, there are some really bad patents being issued and once they get issued, they become a baseball bat waiting to be used and abused. On the other hand, I suggest based on the news I’ve read surrounding trade agreements and organizations, small countries wishing to trade with the 1st world are being told to adopt patent systems or look elsewhere for opportunities. That is sort of like peer pressure. If patents were so great, no pressure would be needed.

    As to big vs small, if large businesses can’t patent ideas that amount to very large land grabs, then small businesses can’t either. That will even out the playing field. Even if a small company comes up with something truly novel, they will have the first mover advantage. Patents seem to help incumbents more than newcomers. Why? Incumbents have the money to fund teams of attorneys. Without patents, incumbents could try to copy ideas, but if something is truly novel and different, it’s not going to be easy to for a large company to move fast enough to take away that first mover advantage. Sure, they can copy the idea, but they can’t copy the thinking behind the idea.

    Here’s an interesting quote from the Foundation for a Free Information Infrastructure (http://press.ffii.org/Press%20releases/Economist%20Critic%20of%20Software%20Patents%20gets%20Nobel%20Prize):

    The FFII calls on the Commission to finally acknowledge the insights of people like Prof. Maskin and abandon its naive proliferation policies: “How much more proof is it needed? If IT professionals, economists, and entrepreneurs – and now even a Nobel laureate – agree that software patents are bad for business and innovation, the Commission should take the hint and act to abolish software patents.”
    [end quote]

    So a Nobel Prize winning economist is critical of software patents? And he’s just one guy. There are many, many others out there. The only reason Red Hat is getting software patents is to protect against other software patent holders, like Microsoft. If no one could get software patents, Red Hat wouldn’t need them. As James Bessen and Robert Hunt have noted in their own study commission by the Federal Reserve, software patents tend to replace R&D at the firm level. And they have documented a steady decline in R&D over the last twenty years. Money spent on prosecuting patents is money that could have been spent on R&D.

    Like I said, if software patents really spurred innovation, I’m not seeing it.

  • [Avatar for Gene Quinn]
    Gene Quinn
    December 1, 2009 02:52 pm

    Scott-

    Both from a moral and a legal standpoint, but certainly from a legal standpoint.

    Why is it so difficult for you to understand that those who write software for a living or have a small software business absolutely need to have software patents. It is a form of insurance. Without any software patents they are targets. With software patents they are not to be messed with because if they have their own portfolio chances are that others are infringing them, so they don’t get sued. Software patents provide small businesses with insurance, and allow them to continue to innovate.

    You might not like this, but that is the way it is. You also might not like software patents on any level, but the reality is there is plenty of extremely new and non-obvious software that deserves protection. There is no reason to throw the baby out with the bath water, although the USPTO could and should certainly get better at examining these patents moving forward.

    One last thought. The trouble is not software patents, it is the crap that gets issued to the large corporations. It is easy for a large corporation to get a crappy patent issued, and very difficult for an independent inventor or small business to get even legitimate innovations patented. That is the far bigger story. I don’t disagree that there is a lot of crap out there, but arguing that software patents should not exist because Bill Gates says so is to turn a blind eye to Microsoft’s motivation. They don’t want patents because they don’t need them and if others get them they could be used to hold up Microsoft from copying and stealing. It is a self serving position that continues to insulate their monopoly. This, among other reasons, is why Red Hat and others are pursuing patents. They might not like it, but they are smart enough to see the need to have them or be walked over. More business savvy enterprises also see them as a means to gaining market and increasing innovation.

    -Gene

  • [Avatar for Scott Dunn]
    Scott Dunn
    December 1, 2009 02:39 pm

    Whatever.

    The bottom line is that patents are being used to consolidate power, not to advance innovation. Software patents look like a fresh land grab to me. The question has, as another poster has put it somewhere else, moved on from “should software be patentable?” to, “are software patents good for society?”

    I think not. Books like “Patent Failure” and “Math You Can’t Use” to illustrate the point well. Even Michael Heller has shown the damage done in the Tragedy of the Anti-Commons.

    Are you arguing from a moral standpoint or a purely legal standpoint? It’s really hard to tell.

    Scott

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 30, 2009 09:25 am

    Scott-

    I am growing very tired of this nonsense. I refute everything you say with facts and yet you claim I am attacking you rather than what you say. It is clear you know nothing about this area, yet your lack of knowledge has not stopped you from saying things that are provably wrong over and over again. It is impossible to debate someone who does not have any knowledge or experience themselves, particularly when that person is willing to blindly buy into the lies spewed by others.

    Everything you have said is wrong, and I have proved to you that it is wrong. Your continued decision to rely on misinformation presented by those with an agenda and those who lie to forward their agenda is curious and demonstrates that you have your own agenda and have made up your mind to not allow truth and fact to get in the way of believing what is clearly incorrect. There is no point discussing with you any further. I have exposed your position and how you repeatedly rely on fiction. Once that is accomplished my objective has been met. Those who wish to follow you or those you cite are more than welcome to continue to believe lies.

    -Gene

  • [Avatar for Scott Dunn]
    Scott Dunn
    November 29, 2009 07:16 pm

    Gene,

    I said you were the expert. I never said I was an expert. I was simply relaying what I know as someone who made an effort to make himself familiar.

    Attacking my credentials is easier than attacking the sources I’ve cited, I guess.

    Scott

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 29, 2009 02:28 pm

    Scott-

    You should also take a look at this article by Chuck Connell, which explains exactly what software is and why it is patentable.

    http://www.ipwatchdog.com/2009/06/15/is-software-patentable/id=4130/

    -Gene

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 29, 2009 02:26 pm

    Scott-

    It is amazing how you have all of the sudden turned into an expert on patent law, patent history and the evolution of patent law. Earlier in this chain your ignorance was shining through and demonstrated to everyone that you were telling lies to suit your own agenda, knew nothing about the law, know nothing about patents and your continued bolstering of Kinsella is ridiculous. He is a patent attorney who hates patents. How can someone like you wrap yourself around the flag of someone who is spews such nonsense while at the same time not being committed enough to find a new line of work? Very interesting.

    Microsoft doesn’t like software patents because they are tired of having to pay when the rip off small businesses and independent inventors. Why do you continue to ignore that truth and simply never address it?

    Thanks for the Groklaw reference. Months ago I proved that was completely wrong and wholly untrue. See:

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

    This is hardly fun or interesting when it is so easy to expose your lack of knowledge, faulty logic and ignoring the overwhelming evidence that supports the exact opposite of your positions.

    -Gene

  • [Avatar for Scott Dunn]
    Scott Dunn
    November 29, 2009 01:58 pm

    Gene,

    Given that the price of freedom is eternal vigilance, how patent rights should interact and exist side by side with property rights should remain an open question. Anyone familiar with the history of patent law knows that what is allowed to be patentable has evolved over time. Although Congress never explicitly permitted patents on software in their legislation, courts have made interpretations to try to resolve the issue. The evolution of the patent law in the courts and Congress has evolved a patent law that has proven to be an arbitrary and confusing area of law even for experts in the field. Kinsella has much to say on the arbitrary nature of patent law.

    With property rights, the limits of those rights have a bright line – I know where my property begins and ends. With software patents, where you draw the line is an open question. Rob Weir of IBM wrote an interesting piece on this subject called “Metes and Bounds” (http://www.robweir.com/blog/2008/02/by-metes-and-bounds.html), where he demonstrated how hard it is to figure out where software patents end and other rights begin. The language in software patents is so broad and general that it’s hard to know if code is infringing without doing a patent search. We have more than 200,000 software patents here in the US alone. This is alternatively known as a “patent thicket”, difficult to navigate without getting pricked. This patent thicket has given rise to patent pools and defensive patents.

    Is that the innovation you speak of? At least with property rights, I have a clear understanding of what is mine, what I can use and what I can do with it. Life is not so clear with software. For a business with inside developers, coming up with new ideas to solve problems every day, and implementing them, the owner has no way of knowing for sure if he’s not infringing on one of those patents. If he wants to develop software and distribute it, he’s much more likely to be the victim of a shakedown lawsuit. You know, “just pay us the royalties on patents of questionable value and nobody gets hurt,” is the strategy for a quick settlement.

    Even that great bastion of innovation, Microsoft, has severe ambivalence towards software patents. Their thinking seems to be along the lines of “I could use software patents to hobble or wipe out GPL software, but I get sued every year over patents.” That sounds really innovative.

    Check out groklaw.net for an article that clarified the issue of whether or not software should be patented. The basic premise is that all software is math. Since math is not patentable, neither should be software. You can read it here: http://www.groklaw.net/article.php?story=20091111151305785.

    So, unless you can patent math, you’re going to have to lobby for enabling legislation. 🙂

    Scott

  • [Avatar for Scott Dunn]
    Scott Dunn
    November 29, 2009 11:50 am

    Gene,

    I never said freedom was free. Free software is free as in freedom, not beer. Red Hat has a proven model of providing free software and charging for support. VMware does something very similar. They give away a basic product that is functional in the enterprise and charge for support when you get into a situation beyond your skills and means.

    Freedom is never free. We both know the costs of freedom. Vigilance. Lots of it. Okay, in some cases, that could include attorneys fees, but you get the idea.

    I just happen to believe that patents infringe on freedom. So how do patents reconcile with property rights?

    Thanks.

    Scott

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 29, 2009 11:35 am

    Scott-

    One more thing. Why would anyone question how patents coincide with basic property rights? All property rights exist only to the extent the government recognizes them. That is no different than patents, copyrights or any other form of property right recognized by the government. You certainly realize the government can take your property whether you like it or not, right? (i.e., eminent domain) And in communist countries there are no property rights to speak of, at least that are stable. Government controls all property rights of every kind, in the US we just have a different idea of what is appropriate.

    -Gene

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 29, 2009 11:33 am

    Scott-

    Why does the fact that people use stuff given away for free suggest that a world without software patents is appropriate? Really. Please explain?

    Why would people pay for things given away freely? They don’t and won’t. That is why many companies in the open source space are openly changing course and tune. You simply cannot support an industry where free is the model. There is no money in free, which is what Sun Microsystems has found out. They have had their revenue drop from billions a year to hundreds of millions and it continues to sink. Soon there will be nothing left of the industry other than those who out of the goodness of their hearts donate their time and forego money so that we can all benefit from the fruits of their labors. That, of course, will come to an end because despise it as you might eventually people need to make money to pay for such things as shelter and food.

    I think everyone that believes in the capitalist model should use as much free software as they possible can, and for heaven sakes don’t donate any money to the developers. Keep using and forcing them to give it away for free, and keep forcing them to continue to improve it or you will go elsewhere. Eventually the industry will implode and we will be done with this nonsense.

    Additionally, we all know that what is free today is frequently gone tomorrow. Or what is free and works today will cease to work so well tomorrow when it gets popular, so there is no mileage in relying on free software for anything critical. If you do you need to be prepared for when things go wrong, like GMail is having glitches, which happens with great regularity any more, or when WordPress comes out with a new version that has serious security flaws or the freeware you used and liked stops being updated or cannot support the latest operating system. When there is money at stake there are solutions that work, and when something goes wrong they get attention. When things are given away for free you have to suck up and deal. That hardly advances innovation, and it is hardly useful in the long term.

    Please carry on giving stuff away for free, just stand back and allow those of use with business sense to continue to get patents and operate in a business savvy and appropriate fashion.

    -Gene

  • [Avatar for Scott Dunn]
    Scott Dunn
    November 29, 2009 11:24 am

    Gene,

    If you’re looking for current empirical evidence of innovation without software patents, consider the possibility that you use some form of it every day. The Apache web server, a free, open source software application now commands more than 60% market share on web servers worldwide. No patent protection. Linux, the foundation of most web servers in operation today, requires no patent protection and seeks none. All of the major securities exchanges use Linux as a platform for transaction processing.

    That might not be enough for you though. You might be a skeptic, too. I see plenty of evidence of innovation without patent protection in free, open sourced software, and that is without the cost of the litigation involved with patents.

    So you know of countries that have given up patents after trying them? Name them. So you know of countries that have voluntarily instituted patents without any coercion by other countries? Name them.

    You might have heard of Stephan Kinsella. You can find one of his blogs here: http://www.againstmonopoly.org/index.php?limit=&chunk=0&author=631. He’s a patent attorney, too. I would be very interested in seeing a debate between you two. I think it would be enlightening to see how the two of you debate the subject. I have never seen a patent attorney was not in favor of patent protection, until I found out about Kinsella. Kinsella is the only attorney I’ve seen (so far) that has properly framed the debate on patents by relating them to physical property rights.

    So please tell me how patent rights (which are really just privileges granted by Congress) can be reconciled with basic property rights. Yes, I’ve done my own research, but I’d like hear your opinion. Or, just provide useful links to what you’ve already written on the subject.

    Scott

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 28, 2009 10:25 am

    Scott-

    I have shown over and over and over again conclusive evidence that patents spur innovation. I do not have to resort to studies, I rely on history and economic realities. Just look around the globe. Everywhere there are no patent rights there is no economy to speak of. Everywhere there are strong patent rights there is a thriving economy, research and development, and investment. It is that simple. Without a strong patent system investors, companies and therefore funds are nowhere to be seen.

    You are certainly able to remain skeptical. I have repeatedly suggested that we take a European country that has a thriving economy and have them abolish patent rights. Then they can show us once and for all that they are right and the model to follow is a socialist one that does not provide proprietary rights. Even the French would never do something so radical, because they know the truth. It is interesting, however, to repeatedly hear calls for the US to dismantle patent protection. I would be all for it if it can be conclusively proven to be better. The trouble is that the studies are fantasy and the only real, hard, clearly demonstrable evidence shows a strong patent system is not only the best choice, but the only choice.

    Looking forward to a quasi-socialist country engaging in the ultimate research and doing away with all patent rights, which by the way hasn’t helped any of those countries that have tried it.

    In terms of drugs being so costly. I agree. Until the US stands up and refuses to subsidize drug development for the world we in the US will pay unacceptably high fees for drugs, while the rest of the world enjoys cheap drugs.

    -Gene

  • [Avatar for Scott Dunn]
    Scott Dunn
    November 28, 2009 09:01 am

    Gene,

    First, I apologize for my attitude as it was totally uncalled for. i was clearly out of line with that and I can lose that.

    Second, I am familiar with the cases you speak of. But the one thing you haven’t shown me is any study that shows conclusively that patents spur innovation. I’ve shown you several examples where patents have proven to be counter-productive, or stifle innovation. There is still considerable controversy over whether or not a patent system is even worth the cost. The litigation, in my opinion far outweighs the benefits of patents.

    So even if you may be right on the court side in terms or rulings, and you are an expert in that field, you still have to reconcile the benefits to society versus the cost. The constitution says that intellectual property rights shall be protected for the advancement of the sciences and arts. I don’t see that happening. I see people trying to patent everything they can find and calling it an invention. See here, http://www.guardian.co.uk/commentisfree/2009/nov/26/science-shackles-intellectual-property.

    The example quote of Bill Gates indicates that he would prefer to patent key technologies to hinder innovation on the part of open source competitors rather than compete on the merits. Recently, Microsoft received a patent on improvements to “sudo” in Linux which has been around for years, and they list it as prior art in their application for the patent. Patents are being used to thwart competition, but that also hinders innovation.

    Another example of the high cost of patents comes from Dean Baker, a noted and respected economist. He has done extensive writing on alternative methods of financing medical research. Here is one example where he discusses how the costs of drug patents exceed the benefits: http://www.prospect.org/csnc/blogs/beat_the_press_archive?month=11&year=2009&base_name=david_brooks_gets_health_care.

    As to your example stories about Red Hat, there is nothing to suggest that they are planning attacks against open source competitors. I can see how they might use the messaging patent defensively, against MS in the event of an attack.

    So, until you can show me conclusively with empirical evidence that patents provide more benefits than costs, I will remain unconvinced.

    Thank you for allowing this post.

    Scott

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 28, 2009 07:53 am

    Scott-

    You actually think you can tell me something about the history of software patents that I don’t know?

    First, your response confirms to me and everyone knowledgeable about the issue that you do not know what you are talking about. State Street was decided in 1998. I don’t care what Bitlaw or any other source says. Try reading the case. See:

    http://www.ll.georgetown.edu/Federal/judicial/fed/opinions/97opinions/97-1327.html

    Second, software patents have been around for far longer than 1991. Software has been patentable in the US at least as early as the 1970s. We didn’t call it software back then, instead preferring to pretend that a machine that used software was patentable as a new machine because of how the software directed the machine (i.e., a computer) to operate.

    The US Supreme Court said in 1981 that at least some software is patentable. See Diamond v. Diehr. You can actually read the case at:

    http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=450&invol=175

    I am sure you will understand that neither Apple nor Microsoft were big in 1981, correct?

    Also, Red Hat has plenty of patents, so once again you conclusively prove your ignorance. You can see from Red Hats own website they have patents. See:

    http://www.redhat.com/legal/patent_policy.html

    In fact, the open source community is increasingly suspicious of Red Hat and its patent desires, and they are acquiring patents for both offensive and defensive purposes. See:

    http://www.theregister.co.uk/2009/03/16/red_hat_patent_app_dynamic_routing/
    http://blogs.techrepublic.com.com/opensource/?p=466
    http://online.wsj.com/public/article_print/SB125236988735891147.html

    There is a lot of really great and educational reading on IPWatchdog.com, and you would do well to read and learn before you try and have a debate with an industry expert like myself. Start with this:

    http://www.ipwatchdog.com/2009/01/24/the-history-of-software-patents/id=1772/
    http://www.ipwatchdog.com/2009/04/01/history-of-software-patents-arrhythmia-research/id=2399/
    http://www.ipwatchdog.com/2009/11/01/history-of-software-patents-iii-in-re-alappat/id=7059/
    http://www.ipwatchdog.com/2009/06/29/how-to-patent-software-in-a-post-bilski-era/id=4311/
    http://www.ipwatchdog.com/2009/07/02/software-new-engine-must-be-patentable/id=4371/
    http://www.ipwatchdog.com/2008/12/15/computer-software-is-not-math/id=1040/
    http://www.ipwatchdog.com/2009/10/04/why-all-small-businesses-need-software-patents/id=6447/

    Please do your research. Please also lose your attitude. As if I am not up for a debate with someone who is clueless. When you recite historical facts please be accurate. If you cannot keep it real you will not be welcome here on IPWatchdog.com. I don’t shy away from debate, and I don’t mind an alternative point of view, but those who lie about facts to support their foolish arguments are not welcome. If you don’t like facts and reality then I certainly invite you to “go elsewhere.”

    -Gene

  • [Avatar for Scott Dunn]
    Scott Dunn
    November 27, 2009 10:12 pm

    Gene,

    Patents on software are widely acknowledged to have been legitimized around 1991 in the State Street Decision. You can read about the history here: http://www.bitlaw.com/software-patent/history.html. And that is only one place as there are many others with similar information. That is long after Apple and Microsoft became “big”. Therefore, software advanced quite steadily and strongly without the protection of software patents.

    Even Bill Gates is quoted as saying the following: “If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today. … The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors.” Hardly the voice of innovation, eh? Microsoft would like to use software patents to eliminate free software (free as in freedom, not beer). I consider free software to be far more innovative than proprietary software because they share ideas so easily.

    If you think a world without patents would only benefit large businesses think again. Apple and Microsoft started out small and got big without software patent protection, proven history. And look at Red Hat! Are they seeking patent protection? No. The fact of the matter is, if large business can copy ideas from small firms, small firms can do the same. It is the first mover advantage that makes the money.

    Clearly, you’re not really interested in an open and honest debate on the merits. You’re making an assumption that patents will spur innovation, but there is no study that has ever proved that. Countries around world adopt patent systems not because they want to, they do it because we tell them to. Adopt the patent system or we won’t trade with you – that is the message they receive, loud and clear.

    Copying and improving on existing ideas is a part of life and always will be. Patents are an arbitrary decision by humans to go against the model of life. And given the magnitude of the problems we face as a civilization, we’re going to need far more cooperation than competition to solve them. Patents are a winner-take-all system that tends to foster competition rather than cooperation.

    So, if you’re not up to the debate, I can go elsewhere.

    Good luck.

    Scott

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 27, 2009 11:49 am

    Scott-

    If this speaks of monopoly in your mind it is apparent that you do not understand the term monopoly.

    It also proves conclusively that you are not a student of history. Once upon a time all the giant corporations started off small and grew. Apple and Microsoft come to mind as exceptional examples of how a company can start with little or no money and a couple of guys who are dedicated. Both of these success stories also clearly demonstrate what an effective patent strategy can achieve.

    Your lie, which you state as if it were absolute truth, regarding how patents hobble innovation and consolidate power is nonsense. Those who wish to abolish patents, including software patents, are the ones who want to solidify consolidated power in the mega corporations who no longer innovate. It is truly ironic that all the “little guy anti-patent” folks want to abolish patents and make them weaker, which is the same thing the giant corporations want to do. Yet you and others are so blinded by irrational hate for what you truly do not understand that you can’t see a wolf in sheep’s clothing. Hatred had blinded you to reality and you are doing the bidding of the evil large companies that you seem to detest. You are being manipulated and used, and you don’t understand enough about law and economics to even understand that. Very funny indeed!

    Why don’t you go and spew your irrational and incorrect propaganda elsewhere on sites where folks don’t understand patents, don’t understand the economy and would rather small businesses and individuals remain subservient to giant corporations. Ignoring truth, logic and history in an effort to remain clueless is not something that is appropriate here on IPWatchdog.

    -Gene

  • [Avatar for Scott Dunn]
    Scott Dunn
    November 27, 2009 12:30 am

    Gene,

    You advocate the efficiencies of patents and suggest that patents are not monopolies. Well, you might want to read about how at least one projection estimates that in the near future, roughly half of all utility patents will be by the top 150 filers. http://www.grayonclaims.com/home/2009/11/23/top-150-customers-increasing-domination-of-the-patent-system.html. That speaks of a monopoly in my mind.

    There is also the futility of working around patents. Even if i wanted to work around a patent, I’m still going to have to hire a patent lawyer, you know, like you. It’s sort of like credit. You can’t get it if you aren’t willing to pay the banker interest.

    There is a lawsuit in the news that demonstrates your financial interest as a patent attorney in continuing the patent regime that we currently have. You can read about it here. http://thepriorart.typepad.com/the_prior_art/2009/11/altitude-capital-partners-altitude-nines-v-deep-nines.html. Out of a $25 million judgement, the plaintiff only netted $800,000 after all fees were paid. I guess that’s the efficiency of patents, right? Is that what you’d like to see?

    This is one more reason to advocate the elimination of software patents and all patents in general. They only serve to hobble innovation and consolidate power into the hands of the few.

    Scott

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 23, 2009 04:43 pm

    Jaxad0127-

    The point you and everyone else are missing is you do not need to innovate around a patent on a device for sitting on. That is so broad that the claims could not possibly be enforced because it would capture numerous pieces of prior art. Said another way such claims would be invalid and could be completely ignored.

    The same is also true for much, although certainly not all, software. The fact that you and others allow yourself to be deterred from innovating and are allowing yourself to be blocked by invalid patent claims is not a problem for anyone other than yourself. Yes, you should be upset, yes you should advocate for reform, but throwing up your hands and saying all software should not be patentable and that patents prohibit innovation gets you know where. Even worse, it gets you ignored as a radical.

    There are appropriate business steps to take both in protecting your own software so you have assets and really a bullet in a gun that can be fired at one who fires first with their software patents. There are also appropriate business steps to take to get opinions from patent attorneys with respect to what you can do, what you should avoid and what you can ignore. Not operating in a business appropriate way is not a patent law problem, it is a problem for those who simply chose to belief inaccurate things and allow their lack of knowledge yet unjustified confidence deter them from moving forward.

    Finally, it is not MY job to stop the granting of bad patents. Under our system that is as much the job of others in the industry as it is of the Patent Office. Preparing and filing a reexamination request can be done relatively cheaply, at least compared to litigation. So which do you want to be? Do you want to be the ones that don’t move forward and claim the sky is falling when it clearly is not? Do you want to be the ones who miss opportunity? Do you want to be targets of lawsuits? Or would you prefer to move forward like a business and object where necessary to bad patents and get your own patents as insurance against lawsuits?

    -Gene

  • [Avatar for jaxad0127]
    jaxad0127
    November 23, 2009 04:27 pm

    Gene-

    Try to innovate around a patent as broad as “a device for sitting on”. Too many software patents are just that broad. Many more are half as broad with both halves covered by different patents. Or a third with three. Etc. Too many others “should” fail the obviousness test. They don’t because the examiners aren’t skilled in the necessary fields. If you can fix the patent office to stop granting obvious and overly broad software patents then we will leave the system alone.

    -Jaxad0127

    Also, it would help if your comment form mentioned that JavaScript is needed to comment.

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 22, 2009 02:27 pm

    Scott-

    You have only seen philosophy because you are blinded by your agenda. You ignore all evidence to the contrary and focus on things that are inconsequential. Please enlighten us as to why you refuse to acknowledge the truth and factual history regarding countries that do not have patent systems vs. those that do.

    In terms of software patents, like any immature market far more focus is placed on litigation than in working together. That is the development cycle of every industry, and hardly supports your proposition. You are also ignoring the fact that large entities do not innovate on any level. Innovation comes from individuals and small businesses, who need patents in order to attract investors and close business deals. Focusing on those who don’t innovate and say “see, patents don’t help” simply does not forward your case or assist you on any level. It also demonstrates to everyone knowledgeable about the industry that you are an outsider who knows nothing and accepts what others say as true when it conveniently fits within your world view. The studies you references are anecdotal. Why not look at countries that don’t have patent systems and see that they have no investment and no industries. Oh, of course, silly me. Looking at reality would force you to realize you are wrong.

    In terms of the steam engine, there is hardly a secret here. Patents do prevent lazy people from copying, but lazy people would never innovate in the first place.

    It is now your turn to address my points, which you continually ignore. I realize that is typical in this debate given the fact that if anti-patent people ever addressed the issues they would be exposed for the frauds that they really are.

    -Gene

  • [Avatar for Scott Dunn]
    Scott Dunn
    November 22, 2009 12:09 am

    Gene,

    If you want history, how about an empirical study of innovation awards at Word Fairs during the 19th century? You can read about that here: http://ideas.repec.org/p/nbr/nberwo/9909.html. But that might not move someone who is sincerely motivated only by the money made from litigating the patent system rather than examining the ethics of the patent system. Sure, it’s a study, but it’s a study based on history.

    In the case of software patents, James Bessen and Robert Hunt have noticed in this study, http://ideas.repec.org/p/fip/fedpwp/03-17.html, that software patents tend to substitute for R&D at the firm level. This work was commissioned by the Federal Reserve Bank of Philadelphia. So if patents encourage innovation, why did Bessen and Hunt find that firms were busy enforcing patents rather than innovating? More history?

    How about James Watt? In the book, Against Intellectual Monopoly, by Michelle Boldrin and David Levine, they look through historical records to see how Watt crippled the steam engine industry with his patents. You can find the book here: http://www.dklevine.com/general/intellectual/against.htm.

    Even if you could say that patents encourage innovation, how much is that going to cost the rest of us? Michael Heller elucidates that problem very well in his explanation of the Tragedy of the Anti-Commons. You can find that here: http://en.wikipedia.org/wiki/Tragedy_of_the_anticommons. You can also see his speech about the topic, here: http://www.youtube.com/watch?v=9n89Ec3DFtk.

    So far, I’ve only really seen philosophy from you with no substantive facts or references to back up your position. What else have you got?

    Scott

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 21, 2009 11:59 am

    Scott-

    So you would rather put stock on studies than on history and reality?

    I have the answer. Why don’t we do a real life study. How about the US keeps a patent system and some socialist or communist country abolishes their patent system. Then we can definitively know.

    Seriously, if you are going to ignore the real world real life studies of all those countries who grew their economies by adopting a patent system there is no sense talking to you. There are plenty of real world real life studies that do not require academic thought experiments. Look at China and India for example. Also look at those countries that seize patent rights. There are plenty of studies out there. Industry and inventors do not do business in countries without a strong patent system. That is the best kind of study. It is grounded in fact, life and reality.

    Please enlighten us as to why you chose to ignore reality. Saying “lets face it, the only reason China adopted a patent system is so that they could trade” is ridiculous. That is like saying… well… I am going to ignore all the proof that doesn’t support my position and then say you have no proof. PLEASE. Can we keep the discussion real?

    Please also enlighten us as to why after China starts to follow the path to respecting intellectual property they have had dramatically increased foreign investment. I suppose you are going to ignore that as well, because after all it proves you wrong.

    -Gene

  • [Avatar for Scott Dunn]
    Scott Dunn
    November 21, 2009 09:58 am

    Gene,

    Do you know of any studies which show that patents increase innovation that are not in dispute? I mean, other than saying “look at all the countries that are adopting patent systems”? Lets face it, the only reason China adopted a patent system is so that they could trade with the rest of us. The patent system should be optional for trade agreements so that foreign countries can decide for themselves without being shut out.

    So have you got any? I’ll ante with one study that shows that patents do not foster innovation. Check it out here: http://www.stlr.org/volumes/volume-x-2008-2009/torrance/

    Show us what you got.

    Scott

  • [Avatar for aristos_achaion]
    aristos_achaion
    November 20, 2009 09:28 pm

    That’s good to know about how many patents and maintenance fees (actually, you’re right, I didn’t know that!), but that doesn’t change the fact that a patent held by a company interested in sustaining it can last for twenty years…that’s perhaps a reasonable time in some industries, but, again, in the software industry, that’s generations and generations of software, and it’s hard for a small developer to know what might be patent-encumbered.

    What the patent fees accomplish, then, is to make the patent system unworkable for someone like me (I certainly can’t pay for maintenace fees or litigation to enforce patents), while leaving me incredibly vulnerable to someone like Microsoft or IBM (or whatever patent trolls they’ve sold the patents to) suing me without me even knowing I was infringing. Not to mention that plenty of patent-holders use the threat of suing to throw their weight around. Consider Microsoft’s two-hundred-somthing patents it claims the Linux kernel is infringing. The Linux developers would happily remove the infringing features if they knew what the patents were, but MS prefers to just threaten, driving away potential users.

    Certainly, a little knowledge can be dangerous, but I’m not sure it’s as bad as all that. Sure, maintenance fees are important to patent holders, but to innovators living under the threat of lawsuits, there’re enough well-maintained ones to worry about. So, I know that, if I try to develop an innovative program, I can be sued without even knowing I’d done anything wrong. Patents don’t protect an open-source coder at all…they just make you lose sleep at night, wondering if you might be sued. To say nothing of the fact that software is already protected, by copyright.

    And I’m not “anti-patent”. I quite approve of patents for mechanical inventions, and a bit more reservedly for biomedical innovations, but I think that some aspects of the current system need looking at…do you really think that current patent law is perfect? The recent oral arguments from Bilski seem to indicate the Supreme Court thinks it isn’t.

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 20, 2009 04:15 pm

    Aristos-

    Patents do not remain in force for twenty years. The longest a patent can remain in force is 20 years from the filing date of the earliest application, but you do not achieve enforceable rights until the patent issues. That means at most patents last for about 17 years, sometimes much shorter.

    On top of that, there are 3 maintenance fee payments due during the life of a patent, at 3.5, 7.5 and 11.5 years after the patent issues. If you do not pay the maintenance fee within 6 months of the due date the patent falls into the public domain. Many patents fall into the public domain after 4 years, an overwhelming number fall into the public domain after 8 years and it is quite rare really for the final maintenance fee payment to be made so most of the rest fall into the public domain after 12 years. Very few patents actually enjoy the full patent term.

    Of course, those who are anti-patent don’t know this and that is why their claims that patents last too long are quite laughable. This is the trouble with a little bit of knowledge. Having a little knowledge and assuming that knowledge is extraordinary allows those with an agenda to manipulate people into believing things that simply are not true.

    -Gene

  • [Avatar for aristos_achaion]
    aristos_achaion
    November 20, 2009 03:32 pm

    Also, I too do not appreciate the “if you’re not with us you’re against us”-style rhetoric. You can argue that patents have gotten way out of hand without being opposed to patents wholesale, though more reasonable people do oppose patents wholesale than normally embrace most such extremist stances. It’s this sort of reasoning that’s going to bring the entire patent system down…try to patent anything and everything, patent system’s eventually going to be ruled unconstitutional.

  • [Avatar for aristos_achaion]
    aristos_achaion
    November 20, 2009 03:26 pm

    Patents remain in force for twenty years. Legally if not practically. Patent trolls can terrorize developers for years after the software the patent was filed for has been forgotten…after all, *five* years is a long time for software, twenty is practically perpetual.

    Don’t get me wrong, I’m not entirely opposed to patents…not yet, at least. They just need to be severely restricted…they don’t promote innovation except perhaps in mechanical or biomedical spheres.

  • [Avatar for Noise above Law]
    Noise above Law
    November 20, 2009 03:24 pm

    “…equivalent of getting slashdotted.”

    Oh, how droll.

  • [Avatar for Kelledin]
    Kelledin
    November 20, 2009 03:20 pm

    Quinn:

    “I don’t appreciate your misleading rhetoric. I did not tar you and I did not tar engineers.”

    I’m sorry, but when you say, “There is also no denying the fact that those boldly challenging patent rights are anti-patent and would prefer no patents at all,” how exactly are people supposed to interpret that? Such a statement seems to imply that there’s no middle ground here, or at least nobody occupying it–and that simply doesn’t wash. Unfortunately, this entire piece seems to follow the same rhetorical tone.

    As for something a little more productive…why not argue this matter in a single petition-style amicus brief? Present a set of arguments that most of the people on your side can agree on, and include a list of undersigned parties in the brief to lend weight to it? I expect any court would appreciate that rather more than the judicial equivalent of getting slashdotted.

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 20, 2009 02:46 pm

    James-

    That is simply not true.

    Let me ask you this. How long do you think most patents remain in force? The answer is going to shock you no doubt.

    -Gene

  • [Avatar for James]
    James
    November 20, 2009 02:43 pm

    “Patents do not hinder innovation. They force people to invent around and that promotes innovation. ”

    I disagree with this. Not all patents hinder innovation, and certainly that was true when this country was primarily an industrial society. However, now that we are more of an information based society, there certainly is a class of patents that are filed simply to protect a company’s bottom line and obstruct innovation.

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 20, 2009 01:27 pm

    Scott-

    No offense, but the reading you are doing is guiding you wrong. There is no such thing as a patent lottery. Patents simply do not hinder innovation. Only those who are lazy are blocked by patents, and lazy people would never invent something anyway.

    You see, if I get a patent you can get an improvement on my invention and block me from using the improvement. That is exactly what happens in industry. Inventors and companies do not give up, the move forward and the march of increased innovation fosters inventiveness.

    I suggest you do more reading. I recommend you start with the history of those countries with no patent rights or limited patent rights. You will find that universally they have terrible economies. Those countries with strong patent rights have thriving economies.

    -Gene

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 20, 2009 01:23 pm

    Jack-

    You invented the gene? You should contact the ACLU and explain your conception and any reduction to practice. If you can prove that you are an inventor I am sure they would be interested. Notwithstanding, you are not an inventor because you were born with genes, and genes are not being patented regardless of the misleading propaganda that you read.

    You say: “That would be like patenting a newly discovered fruit tree in the amazon that extends life, or is the greatest aphrodisiac ever.”

    Well, actually that would be patentable. Not the plant as it exists in nature, but the extract from the plant that is synthetically made, processed or purified by man. This happens all the time and is clearly patentable. This is widely known and accepted by everyone really. You should be careful when giving examples that you don’t support the opposition.

    -Gene

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 20, 2009 01:10 pm

    Kelledin-

    I don’t appreciate your misleading rhetoric. I did not tar you and I did not tar engineers. This type of misrepresentation does nothing to forward any discussion.

    -Gene

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 20, 2009 01:07 pm

    EG-

    Certainly. This probably marks the first or maybe second time we have disagreed, mostly on procedure and strategy if I remember correctly, which is far more art than science.

    I hope all is well.

    -Gene

  • [Avatar for EG]
    EG
    November 20, 2009 11:50 am

    “I disagree with you about amici being ineffective at this point EG.”

    Gene,

    That’s OK, I could be wrong. Reasonable minds can differ on this point.

  • [Avatar for EG]
    EG
    November 20, 2009 11:48 am

    “GO ACLU! Dismantle the patent system as it currently stands, because it’s become nothing more than a drain on resources and another excuse for certain rich groups to just get richer. Imagine how far we’d REALLY get if all the money spent on IP lawyers today was spent on innovation! If all the money hoovered up by patent trolls who contribute NOTHING to the human body of knowledge was spent actually rewarding innovators?”

    Marc,

    I’m a former card-carrying card member of the ACLU. I say “former” (and I’ll never be a member again) because I came to realize how hypocritical, two-faced, and forked-tongue the ACLU is. This current nonsensical suit fueled by the ACLU is just one example that hits my “hot buttons.’ The constitutional claims in the Complaint are a complete distortion of what the patent claims actually cover and for that, the ACLU deserves, in my opinon, Rule 11 sanctions. What’s worse, this suit tries to completely negate by court fiat what Congress has said is the only lawful body to determine what should (or shouldn’t) be granted a patent in the first instance: the USPTO.

    In my opinion, cheering on the ACLU to “dismantle” the U.S. patent system is myopic in the extreme, and is completely misguided in endangering the competitiiveness of innovative small businesses in the U.S, as well as job growth in the U.S. Large companies don’t necessarily need patents to compete: their size and power does that for them. By contrast, the only thing standing between small business innovation and large companies freely copying that innovation are patents. Also, and this is a well-established fact, current job growth comes primarily from small busineses, not large companies (who are currently shedding jobs at an ever increasing rate). Take away patent rights or make them too weak, and small innovative businesses, our current “job engine,” won’t be able to exist for long to create those jobs. Instead, all we’ll have are large companies and government, neither of which do I trust to encourage job growth.

    Just my 2 cents for what it’s worth.

  • [Avatar for EG]
    EG
    November 20, 2009 11:25 am

    “I also notice the comments on Jefferson writing the original Patent Act. Even so, his letter to Isaac MacPherson on patents spells it all out very clearly how he felt about patents.”

    Scott,

    Be careful of relying upon what has accurately called the “Jeffersonian story of patent law.” See Adam Mossoff’s article entitled “WHO CARES WHAT THOMAS JEFFERSON THOUGHT ABOUT PATENTS? REEVALUATING THE PATENT “PRIVILEGE” IN HISTORICAL CONTEXT where he says in the abstract: “patents were civil rights securing important property rights—what natural-rights-influenced politicians and jurists called ‘privileges.’” Too much credence has been given to what Jefferson said about the patents, incuding SCOTUS in an extremely unfortunate and disengenuous statement in Graham v. John Deere Co. about a “constitutional standard” for patentability based on the “Jeffersonian story of patent law.”

    A more accurate view of the purpose of the Patent and Copyright Clause comes from Federalist Paper No. 43 written by James Madison (not only one of the primary architects of our Constitution, but also unlike Jefferson, was actually at the Constituational Convention):

    The utility of this power will scarcely be questioned. The copyrightof authors has been solemnly adjudged in Great Britain to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point by laws passed at the instance of Congress.

    Mossoff correctly points out that the critiques of Madison’s defense of the Patent and Copyright Clause miss the point of Federalist Paper No. 43 “because they fail to account for the intellectual context of the
    Founding Era—the then-dominant natural rights philosophy and its social contract doctrine.” In particular, “privileges” had a different meaning back then, namely “social rights” carved out of the basise “natural rights.” Put differently, “privileges” back then were viewed as significant rights, like the right to own property. That makes the “patent privilege” equally a significant property right.

    I’m not saying that Jefferson didn’t have a particular view (by curent standards, Jefferson would be considered a libertarian) about patents that many currently now share. But it isn’t the only view, and it certainly isn’t the one expressed in the Patent and Copyright Clause. Put it this way: patents are not “privilges” (like a driver’s license) according to the modern day venacular for this term, but instead significant property rights.

  • [Avatar for aristos_achaion]
    aristos_achaion
    November 20, 2009 10:45 am

    Perhaps a patent doesn’t provide a monopoly in the antitrust sense, but a patent is by definition a government-granted monopoly. That’s simply what it is…I can understand that a patent lawyer probably can’t see the forest for the trees, but from a coder’s point of view, it’s quite clear from the stultifying effects patents have.

    I really could care less about someone “stealing” my innovations…after all, plenty of coders are already getting their innovations stolen by their schools or employers. Bilski and the ACLU are rays of hope to everybody who hopes to actually get work done in this world.

  • [Avatar for Kelledin]
    Kelledin
    November 20, 2009 10:42 am

    Thanks, Quinn, for tarring me and other engineers with an extremely broad brush.

    FYI, I am one of those people “boldly challenging patent rights”, at least in the realm of software patents. I have very good reason to do so; I am a professional and open-source software engineer, and I am intimately aware of the destructive tendencies of software patents, and their complete ineffectiveness at achieving their intended purpose.

    I have never advocated complete abolition of all patents, and out of all the people I know who share my opposition to software patents, not one of them has displayed any wish to completely dismantle the patent system. Your attempt to ascribe such an attitude to our side is, at best, wildly inaccurate.

    I can wholly appreciate the value of mechanical patents and have no problem standing up for them. I’m quite willing to accept that patents in many other fields may be justifiable, and that in many cases I am simply not familiar enough with their subject matter to offer a useful opinion one way or the other.

    As for the ACLU and whatever they’re arguing, I may or may not agree with them, but I say let them argue. You and the rest of the world are free to argue against them. If someone trots out a flawed legal argument, and it survives three (or however many) levels of appeal before being defeated, so be it. At this point, your current rhetoric sounds needlessly alarmist and badly out of touch. It sounds not so much like a call to action as a call to effectively silence the opposition by spamming the court.

  • [Avatar for Jack Waldron]
    Jack Waldron
    November 20, 2009 10:18 am

    Gene,

    Parhaps it is you who needs to read more of the writings of our founding fathers. it is rather Gouverneur Morris who wrote the Constitution of The United States Of America, and not James Madison. President Madison was certainly one of the important framers of the Constitution, but not the writer of it. While I’d agree that there is Constitutional foundation for patents, our Founding Fathers had a very different concept of what was and was not patentable. Part of the problem is that technology is a hard subject form any to understand, and it all seems like mgic to many. However, from what I can see, this suit is aimed at taking us back to a closer connection to the ideals of the founding fathers.

    While, I think the Founding Fathers would all have agreed that truly innovative medical tools should be patentable, they would certainly disagree that a gene “discovered” by a doctor is not a natural phenomena. Now, unless the doctor actually made this gene by the necessary chemical reactions, (remember, genes are simply an organic chemical (mostly carbon, oxygen, and hydrogen) without of using naturally occurring genes, then he hasn’t invented anything. It’s like saying that physicists and chemists can patent Oxygen for discovering it. The genes existed before the doctors discovered them.
    Not to mention, I probably have a valid claim of inventing the gene first and thus I am living proof of prior art, and since I’m more than 14 years old, the patent is invalid anyway. After all if not for people like me and you continously inventing these so-called genes, there would be nothing for the doctors to discover. Not to mention, I find the idea that some doctor could potentially sue me for violating his patents for my use of a gene I was born with to be a bit ,well Holocaustish (patent pending). Some things just shouldn’t be patented, and patents should be for things one creates that are unique, not just minor improvements (example of minor improvements, that shouldn’t have gotten a patent: windshield wipers with a delay mechanism).
    Finally, Patents are for inventions and not thoughts or writings. Copyright is for writings. Nowhere, in any documents relating to patents do I see a place for patenting “discoveries”. That would be like patenting a newly discovered fruit tree in the amazon that extends life, or is the greatest aphrodisiac ever.

  • [Avatar for Scott Dunn]
    Scott Dunn
    November 20, 2009 10:10 am

    Perhaps Jefferson’s opinions did change. But the fact is, once you disclose an idea, it’s no longer exclusively yours. It’s simply a matter of property rights. As to your point about “innovating around” existing patents, that’s great for patent lawyers, but not for inventors. I’ve done some reading and found that, by and large, patents absolutely hinder innovation. What we have here, really is a patent lottery, nothing more, nothing less.

    I’ve also noticed that new industries innovate just fine without patents, but mature industries tend to run to the government for paten protection. Why do you think that is?

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 20, 2009 09:51 am

    Marc-

    The state is not supposed to provide a monopoly.

    Genes are not patented. You really need to stop listening to Koepsell and others who have a vested interest in promoting that falsehood. Does anyone believe that the US government has granted a monopoly to corporations over the physical bodies of individuals? That is unreasonably fear mongering even for a B-movie script. It also happens to be completely false. Please educate yourself on these issues. Read the patents and you will see they protect methods, not genes.

    If you spent all the money on innovation rather than patent lawyers you would get no where and everyone who rationally thinks about the issues knows that to be true. Why would anyone spend money to innovate when others can simply steal what they have innovated? That type of communism has never worked anywhere in the world because it is the absence of incentive to succeed.

    -Gene

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 20, 2009 09:47 am

    Scott-

    Please do your homework. Thomas Jefferson’s opinions regarding patents matured over time to the point where he understood they were essential. I also notice you do not mention anything about Madison, which is convenient given that he was a strong believer in patent rights, the architect of the US Constitution and one of the primary people who eventually convinced Jefferson of the errors of his earlier beliefs.

    I couldn’t care less whether Congress or the Supreme Court call a patent a monopoly. A patent does not provide a monopoly. Anyone who says anything to the contrary either doesn’t understand patent law or they do not understand a basic market economy. I have explained this repeatedly on this site, so I am not going to go into again. I know you will never have your eyes opened even in the face of overwhelming evidence to the contrary.

    Patents do not hinder innovation. They force people to invent around and that promotes innovation.

    Please try and keep the debate honest and real. There is no justification for the kind of falsehoods you promote.

    -Gene

  • [Avatar for Scott Dunn]
    Scott Dunn
    November 20, 2009 07:11 am

    First, this argument by the ACLU is great news. At least we’re starting to explore the difference between a privilege, the patent, and real property rights. Funny how a patent is the only “protection” that lets you tell *other people* what to do with their own property. Patents are like Multi-Level Marketing. You just want to make money off of other people’s work.

    For the record, clearly established authorities have reviewed the literature for studies that show that patents do not encourage innovation. Inventors like to invent. They do not like to do patent searches in patent thickets to make sure they can sell their product.

    Since you’re so into free markets, how does a “monopoly”, a term used by Congress with regard to patents, make the market free? I also notice the comments on Jefferson writing the original Patent Act. Even so, his letter to Isaac MacPherson on patents spells it all out very clearly how he felt about patents. He simply could not see how they could work. Where do you draw the line on what is patentable and what is not?

    One last thing. Someone above mentioned that so many countries have adopted patent systems, and that justifies them. The same argument could be made about Microsoft software, but that would reveal the fallacy. Just because everybody uses it, doesn’t make it right. Microsoft is using patents to halt the adoption of free software like Linux. They are trying to *hinder* innovation with patents. Isn’t that enough proof?

    Scott

  • [Avatar for Marc]
    Marc
    November 20, 2009 04:11 am

    Simple solution: stop abusing the patent system. Stop defending the extension of a system into areas it has no business being used for.

    Frankly, if the ACLU manages to dismantle the current patent system, maybe it will force people to sit back and create something that ACTUALLY protects the INVENTORS, and isn’t just a cash cow for patent trolls and bio-resource pirates.

    Patents were meant to protect inventors and give them a state-sponsored monopoly in exchange for sharing HOW they create their invention with the rest of the world. For some, it’s become an excuse to go out, find something that’s been in use by others for centuries, and “patent” it by claiming they’re “discovered” a new gene or whatnot, thus denying others the use of something they were already using. But they don’t tell anyone how to BUILD the new gene. That’s not “invention”, that’s bio-piracy, pure and simple.

    Let’s also mention the ability of companies to patent mathemetics through back-door loopholes and dodgy decisions. Because software IS math, yet people can “patent” this mathematics, and people like you keep defending them.

    Bring back real patents that protect the innovators. Bring back a system where it doesn’t take 5 million MINIMUM to defend a patent. The state is supposed to PROVIDE the monopoly, not simply let the innovator defend him/her self against all comers, let the one with the bigger cannons win. That’s not “defending innovation”. That’s “feeding lawyers”.

    GO ACLU! Dismantle the patent system as it currently stands, because it’s become nothing more than a drain on resources and another excuse for certain rich groups to just get richer. Imagine how far we’d REALLY get if all the money spent on IP lawyers today was spent on innovation! If all the money hoovered up by patent trolls who contribute NOTHING to the human body of knowledge was spent actually rewarding innovators?

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 19, 2009 07:19 pm

    Dale & EG-

    I think Rule 11 should be in play, but clearly won’t be with Judge Sweet. I don’t know that impeaching him is the right thing, yet. If he rules patents violate the First Amendment someone will have to do something, even if the Chief of the SDNY just hides him moving forward.

    I disagree with you about amici being ineffective at this point EG. There is no doubt that Judge Sweet will ignore the amici, but what we need is a deterrent effect here. Those who bring frivolous claims like the ACLU need to know that others will stand up to them and fight them at every turn. The throw out insulting and intellectually dishonest arguments for the purpose of pursuing their own agenda, and the purpose of turning public sentiment. That is inexcusable and needs to be shown for what it really is… just plain nonsense. Sitting back and being a target is not an option any more. We need to rally the troops and take the fight to them. We are in the right, we know that historically and factually.

    I just can’t bring myself to think of the nonsense we will have to deal with and the emboldening of crazies if Judge Sweet issues that anticipated decision.

    -Gene

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 19, 2009 07:14 pm

    David-

    You said: “Even if I were certain of victory at the district court level, there’s plenty more steps before there would be any finality, and it certainly would not mean the dismantling of the patent system. No judge, nor SCOTUS, would do that.”

    Lots of steps before finality and acknowledging that no judge or SCOTUS would dismantle the patent system seems like an admission to me. You know as well as I do that if gene patents violate the First Amendment then all patents would violate the First Amendment. The arguments being made relative to the First Amendment are not in any way limited to gene patents. They are anti-patent.

    There you go again with gene patents cover laws of nature. No matter how many times you say that it will never be true.

    Talk about an alarmist. You are the one with the book titled Who Owns You! As if people are owned by corporations who patent methods. Now that is alarmist!

    -Gene

  • [Avatar for EG]
    EG
    November 19, 2009 05:21 pm

    Dale,

    I, like you, feel this suit is so meritless and frivioous (certainly in raising the constitutional claims which are presented in a completely misleading fashion by mischaracterizing what the patent claims actually cover) that Rule 11 sanctions should be in play. I won’t go quite as far as you to say that Judge Sweet should be impeached, but the brief portion of his opinion (4 pages) on the merits of the consititution claims is sheer “Alice in Wonderland.”

    I just don’t think amici at this stage will be effective. If the case gets to the Federal Circuit because summary judgment is granted in favor of the plaintiffs (I sure hope not), the amici who know this suit is so much rhetorical nonsense will bring appropriate briefs to bear (including possibly persuasive arguments for why the constitutional claims are so meritless and frivolous to justify Rule 11 consideraton) that the Federal Circuit will trounce this suit and hopefully scold Judge Sweet for even letting it get this far.

  • [Avatar for David Koepsell]
    David Koepsell
    November 19, 2009 03:12 pm

    Gene,

    Your logic is imperceptible, I admitted no such thing. The district court did the right thing, but as we know the resources that Myriad and the Biotechs can throw at this will help ensure their victory as it works its way up, even as OJ Simpson ensured his victory with loads of cash. I realize I am likely on the losing side, but then, justice is rare. It the end, I am sure the biotechs will throw enough lobbying money at Congress to get their way, as they always do.

    Gene patents are different, as I have argued extensively, since they cover “laws of nature” whereas truly inventive things do not (so my raven-wing argument in previous comments, or my H2O argument, or any number of other arguments about why they differ). So yes, it’s alarmist.

    Best,
    David

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 19, 2009 01:22 pm

    David-

    So you admit finally that the ACLU is frivolous because even if the district court obviously does the wrong thing the Federal Circuit or Supreme Court will set the record straight. Finally you are talking sense!

    It is not alarmist nonsense. If a gene patent violates the First Amendment then so do all patents.

    Folks can do whatever they want, but it is time for patent owners to stand up and take the fight to those who simply detest patents.

    -Gene

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 19, 2009 01:15 pm

    Just visiting-

    What is wrong with expressing my views? If you don’t like what you read then stop reading.

    The ACLU does have a limitless budget and when they stop pursuing their liberal agenda under the guise of public good then I will stop criticizing them. The ALCU is political and radical. Excuse me for noticing and for having the guts to stand up and exercise my First Amendment rights.

    -Gene

  • [Avatar for Just visiting]
    Just visiting
    November 19, 2009 12:14 pm

    “the ACLU, with its seemingly limitless budget to pursue their own agenda”

    Come on Gene … like with your “green revolution” blog, do you have to wear your political affiliation on your sleeve?

  • [Avatar for Just visiting]
    Just visiting
    November 19, 2009 12:10 pm

    “On the contrary, I think it is you, the patent advocates who have the burden of prove upon them that patents really do improve and encourage innovation.”

    Every modern country in the world has a patent system — and I’m using the term “modern” very loosely. If patents did not improve and encourage innovation, why do so many countries have patent systems? Patent systems impose a cost on producers (who cannot produce anything and everything they want) as well as consumers, who have to pay more for patented products/services. In the face this obvious burden on these two entities (presumably with some political clout), why have so many countries implemented a patent system?

    It seems to me that you are fighting the status quo. As such, the burden lies with you to produce some substantial evidence to scrap a system that has been in place for a couple hundred years.

    “because most fields aren’t’ like software and have their own issues to deal with”
    Tallk about sob-stories and the whole “we are different, therefore we must be treated special” smoke blown up your you know what. I have had my feet firmly planted in both the software and mechanical arts for decades, and there are far more similarities than differences.

    You should take the time to learn about the other fields because the changes you are proposing are dramatic. If you are proposing some radical new ideas, you need to know how they will affect other fields. Advocating that we should do A for X, Y, and Z reasons without realizing how those same reasons could also advocate for B and C will likely doom your arguments to failure.

    Despite what you may think, there is typically a very heavy reluctance for the law to play favorites for one side or the other. Although it does happen, it happens very infrequently. As such, you better be armed for bear when you come to Congress (the Courts aren’t going to be much help) looking for special treatment.

    If you aren’t thinking about the BIG picture, people on my side will tear your arguments to shreds every time.

  • [Avatar for Dale B. Halling]
    Dale B. Halling
    November 19, 2009 11:27 am

    Gene,

    I agree with you that this complete nonsense needs to be stopped at the earliest stage. The ACLU should be hit with Rule 11 sanctions and the Judge should be impeached for failure to uphold the Constitution.

  • [Avatar for David Koepsell]
    David Koepsell
    November 19, 2009 02:10 am

    What alarmist nonsense, Gene. Even if I were certain of victory at the district court level, there’s plenty more steps before there would be any finality, and it certainly would not mean the dismantling of the patent system. No judge, nor SCOTUS, would do that. Moreover, amici in the district court would be inefficient use of resources. Finally, to compare the ACLU’s “seemingly limitless resources” to the money that the biotech lobby or even just Myriad has available is laughable. Take a deep breath, wait for the SCOTUS fight (if it gets that far), keep your powder dry for now, then take aim when it really matters. The patent industry has a firm grip on lawmakers, and will always get what it wants in the end, and all it will take, in the unlikely event of a loss in this case, is for Congress to pass another law extending and expanding the role and strength of IP. So, relax.

  • [Avatar for EG]
    EG
    November 18, 2009 04:29 pm

    Gene,

    You know how I feel about the meritlessness of this suit (and the hypocrisy of the ACLU who is fueling it). But as I said before, getting amici involved now at the district court level is unlikely to change the summary judgment ruling by Judge Sweet. Whether he’s made up his mind (or not), no amount of amici briefs will change that. And unlike GSK/Tafas, nothting drastic will happen if summary judgment is granted in favor of the plaintiffs. If summary judgment is granted in favor of the plaintiffs, amici briefs will be appropriate when this reaches the Federal Circuit (who should trounce this suit) and there’ll be many pointing out how wrong and meritless this suit is. That’s my 2 cents.

  • [Avatar for Pissed of Programmer]
    Pissed of Programmer
    November 18, 2009 04:00 pm

    -Gene

    I wasn’t trying to imply that patents weren’t warranted under the constitution, only that they weren’t specifically mentioned and that clause 8 can be materialized without patents. It doesn’t directly mention copyright either, but copyright satisfies the clause. If they really cared about patents specifically, they would have put something in there about patents specifically. One of the key arguments in the Bilski oral arguments was the idea that you have to allow room for refined interpretation because things change and a ridged test for patentability is not robust enough to meet that ideal. I think the founding fathers made the language robust so that it didn’t give specific rights to this or that protection system. They were leaving room in there for the idea that things might change. That is why I say it is a privilege and not a right, because it is always subject to change, and I am arguing that it should change, at least for software.

    I have read Jefferson, and Madison, and Franklin, and Paine. I am actually a big fan of the founding fathers. The funny thing about any argument regarding the intentions of the founding fathers is that it is a contradiction, logically speaking. They believed that each generation should decide what was right for themselves and not be bound by the decisions of their forefathers. A reasonable conclusion considering they were breaking away from a monarchy at the time. However, to reference that point is to make a reference to what the founding fathers believed and contradicts their belief unless you came to that conclusion on your own. A sort of circular trap

    I do see your point about using the first and fourteenth amendments as ammo against software, medical, and business process patents, and how that might open the gates for other anti-patent people to do the same for their fields. I was simply pointing out that not all, and in fact I would argue, most anti-software patent advocates only care about software patents.

    You may not see it as fear mongering, but ti is. Maybe not on your part, but on the parts of the people using Hitler and equating anti-patent advocates to nazi’s. They are using fear to get people to cooperate. If you don’t stop them now, they will come for you next. It may be justified to, and I’m not claiming that it won’t open the gate for further patent attacks, but it is still an argument based on fear. I am not categorically against patents, just software patents, just to make that clear.

  • [Avatar for breadcrumbs]
    breadcrumbs
    November 18, 2009 03:09 pm

    The dogma of the anti-patent, anti-software folks is so prevalent that the so-called masters of logic refuse to see logic when blazing in front of their eyes.

    This is not new. About a year ago now, we had some intense discussions on these boards, now lost. Those that refuse to learn, cannot.

    Gene, your call to action can bear fruit and I second the call. As noted at Patently-O by Noise above Law, the Cacharis decision holds these key words: “Because this case involves the legality of the Final Rules, a determination of their validity does not turn on facts unique to a particular plaintiff or on any disputes regarding such facts” Tafas v. Dudas, 541 F. Supp. 2d 805, 808 – all types and sizes of industries indeed.

  • [Avatar for Gene Quinn]
    Gene Quinn
    November 18, 2009 03:02 pm

    POP-

    Do your research please. The IP clause was intended to directly provide for patent rights. Thomas Jefferson (perhaps you have heard of him) was the first Patent Examiner and issued patents on behalf of the United States. He wrote the first Patent Act, which passed in 1790 as one of the first Acts of the new US Congress. If you care enough to do research and you do it correctly it will be completely clear to you that patents are covered by the Constitution. I suggest you read Madison (perhaps you have heard of him as well… you know father of the US Constitution and US President).

    No burden on us to prove patents help, that is historically clear with volumes of evidence. Equally clear is that not having a patent system means no innovation. All you have to do is look around the globe today and throughout history. I don’t need to rehash that here, I have done it in many articles and in many comment threads.

    You do believe that they will stop with business methods, software and genes? WOW! Talk about naive. You see, if gene patents violate the First Amendment by controlling thought then so would all patents.

    No fear mongering on my part. Just the facts. You should try and keep a grip on reality if you can. Notwithstanding, I am more than happy to support any country other than the US doing away with their patent system and showing the rest of the world once and for all that a patent system is not necessary. That will never happen though because everyone knows that a patent system is necessary.

    -Gene

  • [Avatar for Pissed Off Programmer]
    Pissed Off Programmer
    November 18, 2009 01:57 pm

    -Gene

    “The argument is ridiculous. Does anyone think the same people who gave us the Intellectual Property Clause (Article I, Section I, Clause 8) and the First Amendment thought that the granting of patents, which is a power specifically granted to Congress in the Constitution, is unconstitutional?”

    Not that anybody doesn’t know it by now, but here is that clause.

    “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”

    Article I, Section I, Clause 8 never uses the word patent, and not for a lack of the word not being invented yet either. I think that if they meant patent, and it was important to them, they would have used the word patent.

    Copyright law implements that clause very nicely and has nothing to do with patents. Patents are a privilege, not a right. Which brings me around to my next point.

    ” we in the patent and innovation communities know that the greater good is forwarded by providing exclusive rights for a limited time, NOT by stripping rights or making them impossible to obtain in the first instance … Overwhelming evidence is required to show that innovators, including independent inventors, businesses and Universities, will be negatively affected by eroding patent rights. ”

    On the contrary, I think it is you, the patent advocates who have the burden of prove upon them that patents really do improve and encourage innovation. Anecdotal evidence like sob stories from small businesses doesn’t count either. I think they are slightly biased on the issue. Of course they are going to say “boo hoo, don’t take away my monopoly.”

    “But does anyone really believe that if the anti-software advocates are successful in stomping out business method patents, software patents and gene patents that they will stop there? Of course not! ”

    I do, because I only care about software patents. Richard Stallman, one of the biggest anti-software patent advocates and leader of the GNU and FSF feels the same way. Most of us don’t care about patents in other fields, not because we are apathetic, but because most fields aren’t’ like software and have their own issues to deal with.

    You are trying to paint us as monsters who want to come for your children in the middle of the night and use it as fear mongering ammo to rally supporters to your cause, and quite frankly it is in poor taste to me. Even the whole idea of using Hitler as allegory for this issue is a transparent not matter how many times you try to reassure us to the contrary. You were just pointing it out right? wink wink

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