Obama Mentions Inventors and Patents in State of the Union

By Gene Quinn
January 26, 2011

President Obama at White House Ceremony, November 2010.

Earlier this evening President Barack Obama delivered the 2011 State of the Union Address to a live audience in the House Chambers at the Capitol.  Not surprisingly, President Obama mentioned “innovation” repeatedly.  The use of the “innovation” rhetoric is to be expected any more from our elected leaders, but it is typically little more than rhetoric.  Perhaps that is how this speech will ultimately go down in history, but I must confess near complete shock that President Obama did utter the word “patent” during his speech this evening.

Political leaders any more also throw about the grossly overused term “intellectual property,” with near reckless abandon, so it would not have been surprising to hear the term in the State of the Union.  Of course, the term “intellectual property” is almost always used to refer to copyrights and trademarks, counterfeiting and piracy.  “Intellectual property” is rarely, if ever, used by politicians to refer to patents, inventions and innovative technologies.  So it was perhaps even more remarkable that during the Obama State of the Union there was no mention of the term “intellectual property.”  Instead President Obama focused on the “hard IP” — patents.  Nearly 20% of his speech was devoted to technology, innovation and inventors, saying at one point: “The first step in winning the future is encouraging American innovation.”  He even cited Thomas Edison and the Wright Brothers!

After the initial niceties, and the recognition of the absence of Congresswoman Gabrielle Giffords, President Obama dove into the substance of his speech by speaking in an empathetic way about the loss of jobs, some to the technology revolution and many others to China and India.  He said: “the world has changed. The competition for jobs is real. But this shouldn’t discourage us.”

President Obama moved quickly to point out: “for all the naysayers predicting our decline, America still has the largest, most prosperous economy in the world. No workers are more productive than ours. No country has more successful companies, or grants more patents to inventors and entrepreneurs.” (emphasis added)  I have to confess, I didn’t catch the word “patents” when he uttered it.  I guess I was too ready to be cynical.  Perhaps it isn’t the greatest shout-out that it could have been, but the nod to patents in a speech of 6,862 words is certainly noteworthy, particularly in light of what would come.

After discussing the need to rise up to “meet the demands of a new age,” President Obama hit the innovation core of his speech:

We know what it takes to compete for the jobs and industries of our time. We need to out-innovate, out-educate, and out-build the rest of the world. We have to make America the best place on Earth to do business. We need to take responsibility for our deficit, and reform our government. That’s how our people will prosper. That’s how we’ll win the future. And tonight, I’d like to talk about how we get there.

The first step in winning the future is encouraging American innovation.

None of us can predict with certainty what the next big industry will be, or where the new jobs will come from. Thirty years ago, we couldn’t know that something called the Internet would lead to an economic revolution. What we can do – what America does better than anyone – is spark the creativity and imagination of our people. We are the nation that put cars in driveways and computers in offices; the nation of Edison and the Wright brothers; of Google and Facebook. In America, innovation doesn’t just change our lives. It’s how we make a living.

Our free enterprise system is what drives innovation. But because it’s not always profitable for companies to invest in basic research, throughout history our government has provided cutting-edge scientists and inventors with the support that they need. That’s what planted the seeds for the Internet. That’s what helped make possible things like computer chips and GPS.

Just think of all the good jobs – from manufacturing to retail – that have come from those breakthroughs.

No innovation speech from the President would be complete without mentioning clean energy and green technologies.  The President did not disappoint:

We’re issuing a challenge. We’re telling America’s scientists and engineers that if they assemble teams of the best minds in their fields, and focus on the hardest problems in clean energy, we’ll fund the Apollo Projects of our time.

At the California Institute of Technology, they’re developing a way to turn sunlight and water into fuel for our cars. At Oak Ridge National Laboratory, they’re using supercomputers to get a lot more power out of our nuclear facilities. With more research and incentives, we can break our dependence on oil with biofuels, and become the first country to have 1 million electric vehicles on the road by 2015.


Now, clean energy breakthroughs will only translate into clean energy jobs if businesses know there will be a market for what they’re selling. So tonight, I challenge you to join me in setting a new goal: by 2035, 80% of America’s electricity will come from clean energy sources. Some folks want wind and solar. Others want nuclear, clean coal, and natural gas. To meet this goal, we will need them all – and I urge Democrats and Republicans to work together to make it happen.

I’m not sure how we will be able to get 80% of our electricity from clean energy sources by 2035, and if we do I have a suspicion that we will heavily rely on nuclear energy and need to get building more nuclear power plants, but who knows what is possible if we truly dedicate ourselves to allowing the ingenuity of the American inventor to be unleashed, which of course will require an unleashing of the Patent Office.

In the Republican response to President Obama’s State of the Union Address Congressman Paul Ryan pointed out: “Depending on bureaucracy to foster innovation, competitiveness, and wise consumer choices has never worked — and it won’t work now.”

It is difficult to know exactly what Congressman Ryan was referring to here, at least based on his brief response to the President’s message.  It seems clear, however, that there is a different vision between Democrats and Republicans.  Democrats favor a top down approach where the government is the maestro, or some might even say puppeteer.  The Republicans favor a bottom up approach where the government is limited, sets rules and gets out of the way.  Ryan said as much when he said: “a renewed commitment to limited government will unshackle our economy and create millions of new jobs and opportunities for all people, of every background, to succeed and prosper.”  Ryan would later say: “Limited government and free enterprise have helped make America the greatest nation on earth.”

Thus, it would seem that the parties largely agree on the importance of fostering innovation, but the Democrats favor government spending, or investment if you like, to promote the innovations that are deemed preferable, such as clean energy and green technology.  The Republicans, however, would favor the fostering of innovation and competitiveness in a way that doesn’t require additional government spending to promote research and development necessary.

Missing from the speeches of President Obama and Congressman Ryan was any reference to the United States Patent and Trademark Office.  I don’t believe Congressman Ryan was suggesting that the Patent Office should play no role in fostering innovation, because such a statement would be utter nonsense.

The Patent Office needs to play a vital role in fostering innovations, whether we follow a Democratic path where there is top down government spending to promote certain technologies or we pursue a Republican strategy to create a business friendly climate that fosters private investment in the development of technologies.  This is true because regardless of the government involvement, regardless of University research or the research done at Federal Laboratories, the private sector is essential.  It is the private sector that takes the core, basic, incredibly valuable pure science done in Universities and Federal Laboratories and turns it into products and services that create new businesses, new industries and thousands upon thousands of new jobs.

Now if we can just get both sides of the isle to realize that innovation cannot and will not be fostered in the United States unless and until the Patent Office is resourced properly.  Thankfully, the Patent Office is user fee funded, so there is no need to give the Patent Office taxpayer dollars to get itself in order.  Since 1992 Congress has siphoned off nearly $1 billion of Patent Office user fees and diverted them for other purposes.  Apparently, those in Congress think government revenue is government revenue so it doesn’t matter that it was to pay for services promised.

So far during Fiscal  Year 2011 the Patent Office is collecting more than $1 million a day that it is not allowed to spend because the USPTO budget is locked into Fiscal 2010 levels.  So as the demand for a U.S. patent continues to grow, as the Patent Office continues to generate more work, they are burdened by this work without the benefit of the revenue necessary to perform the services promised.  Essentially the Patent Office is turning into something of a ponzi scheme; an innovation ponzi scheme.  Unfortunately, it is the U.S. economy that suffers because of the technologies on the shelves that cannot get reviewed in any technologically relevant time frame.

President Obama’s speech, at least the innovation portion, was very welcome indeed.  Now we just need to have words translated into action and policies pursued that will ensure that American innovation can thrive.  That will review America’s innovation agency, the United States Patent and Trademark Office, to play a role.  For that to happen Congress needs to stop viewing the USPTO as a revenue generating piggy bank and realize that the diversion policies of the past two decades are largely responsible for our innovation malaise.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 78 Comments comments.

  1. step back January 26, 2011 3:54 am

    There’s yet another flavor of the month word that politicians wov to use: “WE”:

    We are poised for progress.
    … No country has more successful companies, or grants more patents to inventors and entrepreneurs.
    We’re the home to the world’s best colleges and universities
    We are the first nation to be founded for the sake of an idea — the idea that each of us deserves the chance to shape our own destiny.
    … We need to out-innovate, out-educate, and out-build the rest of the world. (Applause.)
    … What we can do — what America does better than anyone else — is spark the creativity and imagination of our people. We’re the nation that put cars in driveways and computers in offices; the nation of Edison and the Wright brothers; of Google and Facebook. In America, innovation doesn’t just change our lives. It is how we make our living. (Applause.)

    text lifted from Obama SOTU speech 2011

    But who is this “we” if not the American inventor?
    And why should the American inventor choose to be the “we” if there is weakened patent protection and continual erosion of his/her rights and compensations?

    The first thing that happens when “government gets out of the way” is the thieves and pirates take the streets.

  2. EG January 26, 2011 7:50 am


    I think I remember you saying there would be no mention of “patents” in the SOTU address. Well, hope does spring eternal!

  3. Blind Dogma January 26, 2011 8:03 am

    Missing from the speeches of President Obama and Congressman Ryan was any reference to the United States Patent and Trademark Office.

    A shame and a slight really, as Kappos did deserve mention for his tireless efforts to restore functionality to the very government structure that nurtured the oft-used “innovation”. Odd it is how difficult the Administration (and political leaders in general) find it to acknowledge the Office.

  4. South of the border January 26, 2011 9:38 am

    Strange… If patents lead to growth and jobs, and if the US grants more patents than anywhere else, then why isn’t the US population fully employed? Perhaps competition, rather than more monopolies, is what the US needs?

  5. American Cowboy January 26, 2011 9:52 am

    El Presidente said: “No country has more successful companies, or grants more patents to inventors and entrepreneurs.”

    Unfortunately, the inference that I draw from that is that the patent system part of the government effort to foster innovation is working just fine and needs no help. Instead, I think what he suggests is handing out money taken from taxpayers under threat of criminal prosecution or borrowed from the Chinese to fund academic researchers.

  6. Gene Quinn January 26, 2011 11:06 am

    South of the border-

    Perhaps you should do your homework. During the previous decade patent allowance rates were depressed from historic averages of between 65% to 75% to as low as 40%. So perhaps the fact that the patent office is finally getting their act together accounts for unemployment coming down from highs earlier in 2010.

    By the way, patents are not monopolies. Again, educating yourself would be helpful. Please see:



  7. Gene Quinn January 26, 2011 11:14 am


    You say: “The first thing that happens when “government gets out of the way” is the thieves and pirates take the streets.”

    That is nonsense and either you know it or you should know it. Government needs to set the rules and get out of the way. They can police the rules, but a far better policing mechanism is to allow private rights of action.


  8. South of the border January 26, 2011 11:33 am

    Gene, since when is a sole right to practice something, at the grant of a govt., not a monopoly? Some monopolies are natural, some are created by governments. Your unemployment rates do not take account of real unemployment figures given many of your unemployed have fallen off the charts. Your current unemployed number about 17 percent, if you count those no longer receiving benefits. US dominance will disappear despite governmental attempts to prop it up, or because of them, since governments cannot create competitiveness through blocking competition. Unions priced your labor put of the world market, and pat nets priced your “innovations” out of markets too. You ought to try free markets, for a change.

  9. Blind Dogma January 26, 2011 11:42 am

    since when is a sole right to practice something

    I guess I should be happy with another customer (thanks for buying that pitcher, South of the border), but I just wonder how many times the point needs to be made that the patent is not a grant of a right to do anything? A patent provides a negative right. South, when you reply in such ignorance to Gene’s call for you to become educated, you make his point more than he ever could.

    I think I need to increase my prices because demand is outstripping supply.

  10. South of the border January 26, 2011 12:00 pm

    What is a negative right but a right to exclude? Patent are exclusionary rights backing up the holder’s right to exclude with governmental force.

  11. American Cowboy January 26, 2011 12:04 pm

    Southie has an academic but not real-world point. If I own the condo at 1611 Main Street, I have a monopoly on the market for condos at 1611 Main Street. That is tautologically true. But, if the other condos on Main Street are not different enough for anyone to care, they can buy one of them and ignore my monopoly.

    The same is true for patents; if the technology protected by the patent property is unique enough and there is enough demand for it and no alternatives, it can be a real-world monopoly. Most patents, however, protect the technological equivalent of the condo of 1611 Main Street.

  12. South of the border January 26, 2011 12:35 pm

    Just in case my poor english was to blame:

    “exclusive control of a commodity or trade,” 1530s, from L. monopolium, from Gk. monopolion “right of exclusive sale,” from mono- (q.v.) + polein “to sell,” from PIE base *pel- “to sell, purchase, barter, gain” (cf. Skt. panate “barters, purchases,” Lith. pelnas “gain,” O.C.S. splenu, Rus. polon “prey, booty,” O.N. falr, Du. veil, Ger. feil “for sale, venal”).

    A patent effectively does this by backing the patent holders legal right to exclude others from a market ( however narrow) for a good or process under threat of private legal action with government sanction.

    Unions create monopolies for labor, and patents create monopolies for goods and processes. Competition, on the other hands, propels innovation and sets competitive prices. The US, thanks to these two sources of monopolies, can no longer compete on the world markets. Make way now for those who can.

  13. Gene Quinn January 26, 2011 12:52 pm

    South of the border-

    You say: “since when is a sole right to practice something, at the grant of a govt., not a monopoly?”

    Did you read the article I provided the link to? My guess is no, because I explain everything there.

    I suspect you are just not familiar with the concept of a “monopoly” if you don’t understand. In a nutshell, a monopoly is when you have a dominant position within a market so as to be able to set pricing at a super-competitive level. So if no one is interested in what you have to sell it is IMPOSSIBLE to be a monopoly because there is no market. For the vast majority of inventions there is no market, so no monopoly. The patent does not give, grant or guarantee a monopoly. It provides the ability to obtain monopoly profits if and only if there are no substitutes (a huge assumption that is virtually never true) and further provided individuals what to purchase the product. Even in the smartphone market there is no monopoly even with the hundreds and thousands of patents.

    It is extremely ironic to hear someone from Mexico suggesting we try free markets. Your comment is naive and presupposes there is anything akin to a “free market” without any governmental regulation. I suppose in Mexico there are free markets of sorts, look at the drug cartels. The government has no authority over vast segments of Mexico. How is that working out for you?


  14. Gene Quinn January 26, 2011 12:54 pm

    BD kool-aid sales go international! Sales strong, analysts predict record 2011 kool-aid sales! STRONG BUY recommendation on the stock.


  15. South of the border January 26, 2011 1:24 pm

    Gene, you are from the US, do you agree with everything happening there? I’m from Mexico, and I don’t agree with everything my govt does either.

    I read your link once before, and found it simpleminded and dishonest. You want to ignore the plain meaning of the word, expressed in the etymology I posted, and make it conform instead to your propaganda.

    History will bear out the fact that attempts to prop up markets with governmental supports, labor market monopolies, and barriers to free trade, will result in the end of US economic hegemony. It’s well under way now.
    Enjoy your legacy, Gene.

  16. Gene Quinn January 26, 2011 1:51 pm

    South of the border-

    The analysis is not simple minded or dishonest. You are trying to ignore the reality that the term “monopoly” has a specific meaning. You choose to define the term in your own way and then pretend that the meaning you attribute is the plain meaning and the correct meaning. Clearly you are wrong. You are using a term you do not understand to talk about issues you cannot comprehend.

    I will enjoy my legacy. You enjoy the chaos south of the border.


  17. South of the border January 26, 2011 2:03 pm

    The etymology ( the word’s root,s), once again, with meaning:

    “exclusive control of a commodity or trade,” 1530s, from L. monopolium, from Gk. monopolion “right of exclusive sale,” from mono- (q.v.) + polein “to sell,” from PIE base *pel- “to sell, purchase, barter, gain” (cf. Skt. panate “barters, purchases,” Lith. pelnas “gain,” O.C.S. splenu, Rus. polon “prey, booty,” O.N. falr, Du. veil, Ger. feil “for sale, venal”).”

    Of course, the right does not guarantee success, but that is not necessary to enjoy a monopoly.

    Now tell me, who seeks to twist it for their own purposes?

    “there is chaos under heaven, and the situation is excellent”

  18. Bobby January 26, 2011 2:16 pm

    Patents are monopolies, and even Giles Rich agrees. In ”Principles of Patentability,” he says “Both [copyright and patents] involve rights to exclude and were recognized forms of lawful monopolies,” and he repeatedly refers to patents as monopolies throughout that article. There is a reasonable argument that since patents don’t convey any positive right, they should be differentiated from monopolies, but this is not a good thing. The reason monopolies are generally frowned upon by modern economists is because there is only one vendor, and the public is not able to buy goods at a reasonable price. Having zero vendors is in no way better. Now, what patents don’t inherently do is give a patent holder a monopoly in a position to significantly harm the market, breaking competition laws. However, that doesn’t mean patent holders can’t do so using patents. This is especially a concern because while around here it doesn’t seem to be acknowledged, large companies can and do acquire very large patent portfolios.

    “During the previous decade patent allowance rates were depressed from historic averages of between 65% to 75% to as low as 40%. So perhaps the fact that the patent office is finally getting their act together accounts for unemployment coming down from highs earlier in 2010.”
    But still, many here have said something to the effect that the US has the most desired, strongest patents. Even if we are ‘falling’ in that regard, we are still number one in that respect, so it seems pretty clear that an uncritical push for more and stronger patents is nowhere near the solution.

  19. South of the border January 26, 2011 2:18 pm

    Gene, you’ve gone through the looking glass:

    “When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.”
    “The question is,” said Alice, “whether you can make words mean so many different things.”
    “The question is,” said Humpty Dumpty, “which is to be master – that’s all.”

  20. Beth Hutchens January 26, 2011 4:00 pm

    But the PTO does not look to “economic merit” in deciding whether to grant a patent or not. There are thousands of patents for all sorts of crappy inventions that never went anywhere beyond a fancy piece of paper in a frame on a wall. I see @Gene’s point in the article referenced above in that a person with no market power is precluded from having a monopoly e.g. he or she can’t exert control over in the marketplace for that particular technology. This is more in line with the meaning of the term under the Sherman Act, and the better approach IMHO. @South refers to the etymology and dictionary definition of monopoly, which, while correct, ignore very important antitrust issues that seem to be at the forefront of any debate as to whether a patent is a monopoly or not.

    I’m inclined to agree with @Gene and @BD (does this mean I stepped away from the pitcher?) Though patent rights are highly exclusive and backed by the government e.g., a monopoly, the mere grant of a patent does not a) guarantee market power b) permit the owner exclusivity to gain that power and squash all competitors or c) preclude others from traveling in the same market, albeit with a different product.

    @Bobby is also technically correct, but I disagree that creating a non-monopoly category for patents is a bad thing. Historically, monopolies were frowned on because of the resulting hindrance (perceived or otherwise) of the marketplace. Even though a patent precludes all others from making,selling, or importing that particular technology, competitors are still free to improve, modify, change, and in all other ways compete in the market place to solve the same problem or fill the same need. They just can’t do it in the identical way. Perhaps if a patent gave the right to practice as well as exclude, we might have an issue.

  21. Bobby January 26, 2011 4:43 pm

    Part of the problem with this discussion is the tendency to think of ‘monopoly’ only in the sense of an abusive monopoly. My electricity is provided by a monopoly, but it does not engage in abusive behavior as far as I know. Many utility companies are even member owned, often seen as providing further protection from abuse. We accept monopolies for utilities because utilities benefit from the network effect, and ten companies laying down incompatible electrical infrastructures is not efficient, and would require lots of permission from land owners. In the case of patents, the patent has all of the generally ‘bad’ elements of a monopoly in the dictionary definition. The only difference is that there is a chance that the monopolist themselves may be excluded as well. In a nutshell, monopolies are disliked because we only have one vendor. The difference with patents is that we might not even have one vendor, most likely because of a complex web of monopolies makes practicing impossible or unprofitable, which is worse.

    As far as society is concerned, a patent itself (not to be confused with the patent system) is pretty much a negative thing. It artificially creates less availability of useful goods and excludes competition from the market. The utility of the patent is that it works as an incentive that can hopefully get the inventor a better chance at getting a return on their research investment, which at least in theory leads to more investment in research. So, if we have a patent system that ‘works’, society is getting a good return on the investment for temporarily ceding their rights to monopolies.

    Now please don’t misinterpret what I’m saying. Patents don’t inherently give big scary Sherman Antitrust Law abusive monopolies. They give monopolies, and trying to say it’s not a monopoly because it’s not inherently the big scary kind is deception. It is a monopoly. Now, patents CAN be used in the big scary way, and I seem to recall MPEG-LA being recently accused of such behavior using patents, but patents may end up effectively being little more than a piece of paper, and that seems to be the case most of the time.

  22. Gene Quinn January 26, 2011 4:44 pm

    South of the border-

    All because you don’t understanding the true meaning of “monopoly”? Interesting.


  23. Gene Quinn January 26, 2011 4:46 pm


    Even Giles Sutherland Rich was wrong from time to time, as we know now that State Street has been overruled.

    He is, of course, wrong about patents being monopolies. Why you and others choose to ignore the economic definition of an economic term is beyond me. But the fact that you are on the provably incorrect side of this argument is hardly a surprise. I would guess at some point just as a result of happenstance you might want to try being correct — just once. But I guess not.


  24. Gene Quinn January 26, 2011 4:47 pm

    South of the border-

    You say: “Of course, the right does not guarantee success, but that is not necessary to enjoy a monopoly.”

    The fact that you would actually type such utter nonsense is quite telling. A monopoly that enjoys no success. Even the Federal Trade Commission and the Department of Justice wouldn’t call a failed entity without market power a monopoly.

    You truly don’t understand the concept and you keep digging deeper and deeper proving your ignorance. Allow me to offer some advice. When you are digging and find yourself in a hole it is time to put the shovel down.


  25. Gene Quinn January 26, 2011 4:53 pm


    I’ll have to let BD decide, as he is the Grand Poobah in Chief of all kook-aid sales, but I think stepping away from the kool-aid is what one does when they are in agreement.



  26. Beth Hutchens January 26, 2011 5:18 pm

    @Bobby- But adhering to a dictionary definition of “monopoly” ignores the very important anti-trust issues with this discussion- good or bad. I’m not ready to call a patent a true monopoly, government granted or otherwise, because the right, though negative, doesn’t include what is required under the Sherman act definition. A patent may have monopolistic attributes, but it NOT a true monopoly- utility company or otherwise. To stick with your utility company analogy, you are correct. A utility company is a government granted monopoly. One can only purchase energy from the ONE AND ONLY provider of electricity for that area- the utility company (a geographic monopoly). There are no competing energy companies. That is, indeed, “exclusive control over a commodity”. You get one type of energy from one company for one price- your choice is their way or no way. Ever tried to argue with the electric company about your rate hikes?

    However, a patent is anything but that. A patent does not prevent a person from offering the same solution to the same problem in a different manner. How many patents for ball point pens are out there? A person is free to purchase any patented ball point pen she wishes from any person she wishes at a competitive price. I say this encourages a free market as well as innovation because it encourages people to constantly look for a better pen and an inventor to provide a better pen. If a patent were a true monopoly, our pen shopper would only have the choice to buy one kind of pen from one person at their price or write in pencil because there would be no other options.

  27. Bobby January 26, 2011 5:39 pm

    You haven’t really proven anything. What you are saying is that not all patent holders are engaging behavior that breaks antitrust law. I agree with that. However, patents are monopolies. As I’ve said before, not all monopolies are the big scary Sharman Antitrust type. Allow me to try to explain.

    Google’s search business is considered by some to be a monopoly, and I can see that as a reasonable argument. I believe you referred to it as basically a public utility in a previous article. If Google doesn’t engage in any anticompetitive behavior, there will not be any kind of DoJ investigation, even though Google dominates the market. If Google actually did what you thought they did to Oracle, there could be a DoJ concern. Having a monopoly isn’t illegal, but abusing it can be. Thus, you can have a monopoly without any need for DoJ involvement.

    I specifically said it’s not inherently the type of monopoly that brings up anti-trust concerns. There is a definition of monopoly, and a patent fits that. Just because there are strong associations with the word ‘monopoly’ with illegal behavior doesn’t mean that monopoly is not an accurate term for describing a patent. it’s a government backed monopoly. Like I said, this is not something that is inherently bad, although many modern economists are not in favor of having monopolies outside of the places where they are the only feasible option. However, if it a well tuned patent system is the tool that gets us the best results, then it’s okay that patents are monopolies.

  28. Beth Hutchens January 26, 2011 6:00 pm

    @Bobby What is your definition of monopoly, then? Other than the board game, what discussion of monopolies could properly exclude the Sherman Act’s definition? “Monopoly” under the Sherman Act REQUIRES market control. Patents don’t grant that.

  29. Bobby January 26, 2011 6:45 pm

    While I am not saying that all patents aren’t big scary Shaman Act type monopolies, I am not saying that they all aren’t either. Abusive monopolies are a subset of monopolies.
    As for the definition, the Latin roots are basically ‘one to sell’, and I think that summarizes it quite well as effectively having one vendor. What we have to have is that in some respect, the monopolist is the only one that can sell a certain product, type of product, etc, or at the very least, has a strong influence on the ability for others to sell that product. A monopoly can be very large, like the supply of oil, or it can be very small and invaluable, like the manufacture of a very specific style of buggy whip.

    Someone who has a patent on a certain type of pen probably doesn’t have a monopoly on the pen market, but they have a monopoly on pens that use a specific mechanism because they either have to license the patent on the terms of the patent holder or not be able to make the pen with said mechanism at all.

  30. Gene Quinn January 26, 2011 7:19 pm


    I agree with what you say to me above at #27 with the exception of “patents are monopolies.”

    You claim I am not proving anything, which is not true. You, however, continue to make this naked assertion about patents being monopolies. Nothing you wrote in #27 or anywhere supports that proposition. In short, it is your belief that it is the case and you offer no proof to support the conclusion.


  31. Stan E. Delo January 26, 2011 8:39 pm

    I really like your new name for the product, but it might perhaps be a bit difficult a get a Trademark registry appoved for it. I can almost see my new product on the store shelves now… *Loopy Lime Kook-Aid* New improved recipe!

  32. New Here January 26, 2011 8:42 pm

    At a personal level, I can’t help feel that this thread has reached over to me as a developer. More then thirty years ago, early in my professional life, I remember the respect for others work, but more important, taking the responsibility for my behavior when working with others, their developments and ideas.

    Having knowledge of another’s work comes with responsibility, that doesn’t mean they have a monopoly on that work as if it being exclusive — it is a line that exist that no one draws, because it is understood to be there. The patent system offers those a way to document their work, in a way they can in a Court of Law demand respect. Patents come with responsibility too, I do not believe, that the Courts I believe in, deal within terms of individual or dictionary definitions of “monopolies” .

    Patents and why I have made it a point about, when talking about them, the responsibility that the holders have for claims and the body of the work within the patent. That a Court of Law, with US Law that not only applies to patents, more, Laws that are the foundation of the USA. “Monopolies” do not circumvent the Law. We, people not of the patent system, too often mistake what actions some patent holders are taking, for the Law. This is wrong.

  33. South of the border January 26, 2011 9:42 pm

    Monopoly=exclusive control over akmarket, pure and simple. If a law grants such exclusive control, a monopoly exists, Gene Dumpty. You don’t get to add the caveat “only if that product becomes successful”. Words mean what they mean, even if you haven’t a clue as to their origins or meanings, and even if they fail to conveniently comport to your principles.

  34. Stan E. Delo January 27, 2011 2:44 am

    A press conference on very short notice, I thought, but very encouraging it seemed to me.Apparently these types of discussions will be happening quarterly, or at least I hope so!! http://www.energy.gov/news/livechat.htm Big numbers and big decisions I would propose.


  35. step back January 27, 2011 6:43 am

    This discussion was supposed to be about the 2011 State of Union (SOTU) Speech, Inventors and Inventions.

    But it quickly degenerated into wild accusations about “monopolies” and the evils of the patent system.

    If you are a new inventor and you have dreams of monopoly and world conquest, good luck with that one. Very few inventors even make a dime out of their dreams, let alone establishing “monopolies” and conquering the galaxy.

    The real question is whether this administration (Obama and the new Republican House and old Dem Senate) will walk the talk. Will they actually give support to inventors and their I Have a Dream proposals?

    A good place to start would be by providing the USPTO with more and better resources and providing inventors with more and better resources.

  36. step back January 27, 2011 6:51 am

    S.E.D., thanks for the link to the video 🙂

    Do we have “the greatest innovation machine in the world”?

  37. New Here January 27, 2011 10:10 am

    @step back

    My post #32 is about me and my little views, and does not contain the word dream in it or anything of the kind. On dear old “inventors and inventions”, many are inventors doing inventions, that not all are just those that patent. In #32 I mention respect, responsibility, for others work that seems to be lacking at the PTO, that doesn’t seem to see that others outside the PTO innovate too.

    I didn’t come here to start a fire storm over the change of direction that this thread took before I posted what I did. So back on topic, the SOTU address ? It seemed to me, that it was talked about that it is time for ALL to take part in the change, new innovation — that the word inventor, doesn’t just mean just those with and obtaining patents. Sorry, I didn’t get that.

    I want to be fair, but the patent system seems to be taking on all the appearance of a world onto itself. The US Law that is the guide here, states NOTHING about that an inventor’s innovation is the sole accomplishment of those of the patent system. If anyone here knows different, please pass it on I want to read it.

    Patent system has lost the general idea about what innovation is, lost for where it really comes from and those that can create it. The PTO has lost the flame to carry the responsibility for innovation.

    Here is a link from the FTC, a report about patents back in 2003.
    I am for what is fair, the patent system needs work ASAP.

  38. New here January 27, 2011 11:21 am

    Please omit “Sorry, I didn’t get that.” @#37

  39. Beth Hutchens January 27, 2011 11:57 am

    @Bobby If you’re saying that by granting exclusivity to a identified bit of novelty for which a patent is granted is a monopoly, OK, but you’re still adhering to the dictionary definition, which is incomplete. The dictionary is a good place to start, but not to finish. Any discussion (or accusation) of a monopoly MUST include market control. Granting exclusivity to a particular point of novelty does not give the patent owner control over the market, it gives him control over that part of the invention. Whether the market needs, wants, or can afford that part of the invention is a separate analysis. One must conclude both in the affirmative to be able to meet the definition of monopoly under the standards set forth by the Sherman Act. Exclusivity is a part of a monopoly, but not the only part. Without the power to control (natch hinder) the market place, it cannot be a monopoly. A patent does not grant this power and therefore cannot be a monopoly.

  40. Blind Dogma January 27, 2011 12:05 pm

    As I have posted previously, the intersection of Intellectual Property and Antitrust law is complex and very nuanced.

    To think that someone whose primary language may not even be English can pick up a dictionary, provide the etymology of a single word, and then expound on the subject is ludicrous beyond imagination.

    But such is a side effect of over imbibing.

    As a treat to those who may so imbibe, I offer the following from the FTC site (http://www.ftc.gov/opa/2007/04/ipreport.shtm ) – These are only a few of the nuances that need to be kept in mind – and these nuances are not even from the responsible agency (read that as the agency that should be posting the actual policies)

    Think of this as my taking the car keys…

    Antitrust liability for mere unilateral, unconditional refusals to license patents will not play a meaningful part in the interface between patent rights and antitrust protections. Antitrust liability for refusals to license competitors would compel firms to reach out and affirmatively assist their rivals, a result that is in tension with the antitrust laws.

    Conditional refusals to license that cause competitive harm are subject to antitrust scrutiny.

    Joint negotiation of licensing terms by standard-setting organization participants before the standard is set can be procompetitive. Such negotiations are unlikely to constitute a per se antitrust violation. The agencies will usually apply a rule of reason analysis when evaluating these joint activities.

    The agencies evaluate the competitive effects of cross-licenses and patent pools under the rule of reason framework articulated in the 1995 Antitrust-IP Guidelines.

    Combining complementary patents within a pool is generally procompetitive. A combination of complementary intellectual property rights, especially those that block the use of a particular technology or standard, can be an efficient and procompetitive way to disseminate those rights to would-be users of the technology or standard. Including substitute patents in a pool does not make the pool presumptively anticompetitive–competitive effects will be ascertained on a case-by-case basis.

    The agencies apply a rule of reason analysis to assess intellectual property licensing agreements, including non-assertion clauses, grantbacks, and reach-through royalty agreements.

    The Antitrust-IP Guidelines will continue to guide the agencies’ analysis of intellectual property tying and bundling. The agencies consider both the anticompetitive effects and the efficiencies attributable to a tie, and would be likely to challenge a tying arrangement if: (1) the seller has market power in the tying product, (2) the arrangement has an adverse effect on competition in the relevant market for the tied product, and (3) efficiency justifications for the arrangement do not outweigh the anticompetitive effects. If a package license constitutes tying, the agencies will evaluate it under the same principles they use to analyze other tying arrangements.

    The agencies consider both the anticompetitive effects and the efficiencies attributable to a tie or bundle involving intellectual property.

    The starting point for evaluating practices that extend beyond a patent’s expiration is an analysis of whether the patent in question confers market power. If so, these practices will be evaluated under the agencies’ traditional rule of reason framework, unless the agencies find a particular practice to be a sham cover for naked price fixing or market allocation.

    Collecting royalties beyond a patent’s statutory term can be efficient. Although there are limitations on a patent owner’s ability to collect royalties beyond a patent’s statutory term, see Brulotte v. Thys Co., 379 U.S. 29 (1964), that practice may permit licensees to pay lower royalty rates over a longer period of time which can reduce the deadweight loss associated with a patent monopoly and allow the patent holder to recover the full value of the patent, thereby preserving innovation incentives.

  41. Stan E. Delo January 27, 2011 12:21 pm

    Your #39 comment is the clearest explanation i have heard here, and completely devoid of any obfuscation. Nicely done!


  42. New Here January 27, 2011 12:22 pm

    @Blind Dogma

    I thank you for the post, #40, I am reading through it and hope to gain from it, a better understanding of your point(s). I also will read the FTC link you provided as well.

  43. Beth Hutchens January 27, 2011 12:38 pm

    Why, thank you @ Stan.

    As Loopy Lime Kook Aid sales achieve record numbers! I can try to get that registered, but don’t hold your breath. And we’ll probably want to see what @BD thinks of the idea, too. 😀

  44. Gene Quinn January 27, 2011 1:02 pm

    South of the border-

    FINALLY you understand the definition of monopoly. In order to have a monopoly one must have exclusive control over a market! Thank you for finally seeing the light.

    Now if you can just admit that patents do not confer monopolies because the grant of a patent does not create or guarantee a market I think you and we can put this embarrassing matter for you aside and move on.


  45. Bobby January 27, 2011 2:16 pm

    Neither I nor South of the Border have brought up the Sherman act. Just because you are only capable of thinking of monopoly in that sense doesn’t mean people using it in a broader sense are wrong in doing so. If you associate the word ‘movie’ with Citizen Kane, and I speak of The Matrix as a movie and you get upset because The Matrix is not Citizen Kane and the two are very different, the one who has made a mistake is you.
    The problem is you are speaking of monopolies in a narrower sense that I am not using. The ‘letters patent’ from which patents get their name were defined as monopolies. The difference is that prior to the statute of monopolies, England was much less specific about the what and why of monopolies. The problem with you and Gene in this conversation is that you are seeing the word ‘monopoly’ in a very specific sense that I am not using, and have REPEATEDLY explained that I am not doing so. I pointed to Giles Rich not because I see him as a vision of wisdom or a master of definitions, but because he was a huge proponent of patents. He didn’t see ‘monopoly’ as inherently a perjorative, and was using the broader definition that I am speaking of. he specified that it was a lawful monopoly, while monopolies in the sense that you appear to be using are generally not lawful. Exclusive control of X is a monopoly on X. X being a useless market does not make a monopoly on X not a monopoly. The economic efficiency of the patent system and whether or not a patent holder is breaking competition law is a completely separate issue from whether or not a patent is a monopoly.

    Please stop using the very narrow minded viewpoint that monopolies are inherently bad. Like I said, there is a fairly large consensus that for many utilities, monopolies with proper regulation are the most efficient model.

  46. South of the border January 27, 2011 2:21 pm

    Gene: you have a simpleminded understanding of a market. The existence of a market does not dendritic upon success. I could corner the market in widgets, through a governmentally granted exclusive right to sell in that market, and yet have no customers. I would nonetheless possess a governmentally granted monopoly.

    The entire discussion and diversion over your failure to understand terms ignores the basic point: your government has not successfully interfered in markets, either by direct influx of cash for banks, infrastructure, or otherwise, nor by regulations that create artificial monopolies (through IP) so that jobs have been or will be created. These statist attempts to manipulate economies, and spur “innovation” are doomed to failure. Your joblessness continues despite, and perhaps due to such attempts at manipulation. Instead, if free markets would only be allowed to thrive, and innovation spurred by competition in those free markets, you might regain your prominence.

    Your president’s use of the word “patents” in relating US innovation rates is proof of your failure, given that indeed, More patents are filed in the US than elsewhere, even as your economy tanks, joblessness becomes chronic, and countries like china and India threaten to overcome you.

    The mythical link between patents and innovation has been revealed, and yet you hope and celebrate like worshipers of a dying god. Pity was invented for the likes of you.

  47. South of the border January 27, 2011 2:23 pm

    “dendritic” should read “depend upon”

  48. Beth Hutchens January 27, 2011 3:38 pm

    @Bobby. Not bringing up the Sherman Act was your first mistake. And yes it does make people thinking about the definition of “monopoly” in a broader sense wrong. Even if you’re Giles Rich. You assume I’m anti-monopoly. You are wrong. You assume I don’t understand what you’re saying. Wrong again. You also assume my rigorous adherence to statutory definitions and standards is narrow-minded. Really, @Bobby? Really? Your argument depends on an incomplete and incorrect interpretation of the term. A patent is not a monopoly. It’s just not. It may have monopolistic attributes but it cannot rise to the level of market control. Even @south got the right definition eventually.

  49. Gene Quinn January 27, 2011 4:01 pm

    South of the Border-

    Actually, it is you that lack an understanding of markets and economics. You also suffer from horrible logical difficulties as well. You also do not understand patents.

    You continue to say that you obtain a “granted exclusive right to sell…” Patents, however, do NOT grant the right to sell. Everyone knows that, and if you don’t that is because you haven’t taken the time to educate yourself. This comment is complete proof that you don’t know what you are talking about.

    Go ahead and corner a market that doesn’t exist because there are no customers for your service or goods and enjoy whatever “monopoly” you think that you have.


  50. Bobby January 27, 2011 4:21 pm

    You accept that a definition of monopoly exists that patents fit, correct? That’s why Giles Rich, Thomas Jefferson, and countless others have made the same ‘mistake’ as I have.

    Why not refer to this broad definition I use as ‘monopoly,’ and the narrow definition you use as ‘illegal monopoly?’

    Now, South’s initial point seemed to be that more competition and less government backed exclusion from specific forms of competition (aka lawful monopolies) through patents would actually be a better solution to the economic problems we are facing. Given that we by most accounts have the strongest patents, and we are not racing ahead of the rest of the world, it seems to be a reasonable claim.

    Even if a government backed monopoly did convey a positive right to sell, it doesn’t mean that there is a market. Let’s say in a pre-Statute of Monopolies England, that a certain tanner John Doe had been granted a monopoly on selling hides of a certain species of fox that in terms of quality is above all others, lets call them widget foxes, for fourteen years. Previous to this, tanning of widget fox hides was illegal, meaning nobody could make widget fox hides. The letter granting Doe this right explicitly states that he can make and sell these hides and that nobody else can make those hides without his permission. Within two years, that widget fox had been hunted to extinction, and thus no market exists for tanned widget foxes anymore. For the remaining twelve years, what would you call the now useless legal right that was once undeniably a monopoly?

  51. South of the border January 27, 2011 4:42 pm

    Gene, the patent grants a right to exclude others from making the thing patented, or practicing the process. So now, then, does this not extend to an exclusive right to sell, etc. ( for the first sale, obviously). Thus, a patent holder can monopolize a market, simple as that, by excluding others from it with the government’s blessing. Now, of course, even a patent does not guarantee success in a market, but by the plain root and definition of the term, a patent holder monpolizes a market for the thing or process patented because by that definition, all one needs is an exclusive right, not success. Patent attorneys help inventors corner useless markets all the time, making healthy fees, but guaranteeing no success for the inventor. Most inventions exist in useless markets. But even a demand by one or two persons equals a market, though clearly not successful by any stretch of the imagination. You raised earlier the note about allowances. Do you have any evidence that shows that the lower allowance rate of the previous decade resulted in slower economic growth? Do you honestly believe that the current, very slight economic recovery the US is experiencing is in any way linked to higher allowance rates? Do you have any evidence at all for your continued belief that governmental subsidies in any form, either by direct cash grants, or grants of monopolies through IP, actually create jobs? If they did, the US would be thriving now, wouldn’t it?

  52. Gene Quinn January 27, 2011 6:05 pm

    South of the border-

    One last time.

    You say: “Gene, the patent grants a right to exclude others from making the thing patented, or practicing the process. So now, then, does this not extend to an exclusive right to sell, etc.”

    The answer is NO. Do your research. If you obtain a patent you do NOT obtain the right to sell. For example, if you obtain a patent on a pharmaceutical compound you will not be able to sell it without FDA approval. If you obtain a patent on certain types of medical devices you will not be able to sell it without FDA approval. These are but two examples that prove the point. I can only imagine what ridiculous retort you will come up with.

    A patent does not in any way shape or form provide the owner the right to do anything other than exclude others. Federal, State and Local governments can prevent the patent owner.


  53. South of the border January 27, 2011 6:08 pm

    Wow, Gene, you parse like Clinton, and think like G.W. Bush

  54. Bobby January 27, 2011 6:26 pm

    Again, the reason monopolies are generally not favored in most situations is because without competition, there is a good chance that the public will not be able to obtain the good in question at a reasonable price. The difference you are pointing out is that in some situations, EVERYONE will be excluded from selling, and the public will not be able to obtain the good AT ALL. From the public’s viewpoint, the situation you presented is probably WORSE than a monopoly, since it would be appropriately called something like a ‘nullopoly.’ If you wish to make the distinction for those purposes, I find that reasonable, but I don’t think it’s particularly important, and it might be seen as ‘anti-patent rhetoric.’

  55. Gene Quinn January 27, 2011 6:37 pm

    South of the border-

    Thanks for the compliments!

    I will take them as an admission of defeat, particularly given what I said is legally and factually correct and you continue to base your beliefs on things I have now thoroughly exposed as incorrect. It must be sad to not be able to be secure enough admit defeat and then attempt to hurl personal insults. Nevertheless, as a history buff I am happy to be compared with U.S. Presidents, particularly the two excellent U.S. Presidents you cite.


  56. Gene Quinn January 27, 2011 6:44 pm


    You raise a valid criticism of the patent system. Remember, however, that due to maintenance fee payments required to keep a patent alive most patents expire either after 4 years or 8 years after they issue. The problem you raise is one of patent trolls, who are not interested in doing anything other than preventing others unless they pay.

    I agree that monopolies are not favored, but with the patent grant there is a difference. Don’t forget the ability to innovate and improve upon the inventions of others and then get a patent on that yourself. So the grant of exclusive rights is a powerful incentive that causes people who are prevented from doing something to figure out ways around. The patent laws encourage that engineering around, as well as improvements. That is exactly why patent foster innovation rather than hinder it.


  57. Stan E. Delo January 27, 2011 10:13 pm

    Hi Beth,
    I think Cracked Crancherry Kool-Aid might be a little better, as perhaps Gene had a typo moment, because the L and K keys are right next to each other. Nary a word from BD so far, so maybe I can become the Kool-Aid West kid while BD is doing something else? Probably wrong, but worth a try I guess.


  58. Blind Dogma January 27, 2011 10:52 pm


    All good things, like Kool Aid take time.

    Patience you must have. Learn you must.

  59. Blind Dogma January 28, 2011 7:14 am

    I am compelled to remind everyone, including Gene, that

    The problem you raise is one of patent trolls, who are not interested in doing anything other than preventing others unless they pay.

    is a legally baseless view – expressing the right that you own is a perfectly legal and legitimate use of property – well within the norms of our legal (and moral) system.

    The substantive patent laws make no difference in the treatment of who owns the property – (I say substantive as I am aware that small identities do receive some preferential treatment – but the so-called trolls also can be small entities, so that point is moot). Generally, the law wants alienability of property. Generally, the law does not want to place additional restrictions on property, and particularly, the patent law has no such restrictions.

    Such moral judgments – especially those not backed by a legal reasoning should be clearly labeled as mere opinion.

  60. Bobby January 28, 2011 3:33 pm

    “The problem you raise is one of patent trolls, who are not interested in doing anything other than preventing others unless they pay.”
    That’s not quite where I was going. Those labeled patent trolls generally want someone to produce the good in question, but want royalties, so it would be more aptly described as a rent seeking monopoly. If we are interpreting the term monopoly very literally (one vendor), then the example of a patent that is not a monopoly is when one party has a patent on something that cannot be produced for whatever reason. The reason may be because it is a medical device or pharmaceutical that has to meet FDA approval, or one that has tried and failed. It may be because there are multiple patents needed to produce a certain product, and that the licensing cannot be obtained in a profitable manner for whatever reason. Thus, instead of the patent creating a monopoly (one vendor), we are left with a ‘nullopoly’ (no vendors). In regards to society, having some at a bad price is generally going to be preferable to having none, so the cases where we have a nullopoly due to patents are arguably worse than when we have a monopoly.

    “So the grant of exclusive rights is a powerful incentive that causes people who are prevented from doing something to figure out ways around”
    This is basically “when life gives you lemons, make lemonade.” However, ‘giving lemons’ is generally not socially desirable behavior of governments. There may be some progress made by having firms overcome adversity, but it also means that sometimes money goes into reinventing a square wheel. If a workaround is much better than the original or at least has strengths that make it better for certain purposes (such as cheaper to make, but lower quality), then research in that area would likely be financially justified on its own. If a workaround is only marginally better or is worse, than the workaround is basically a waste of everyone’s time.

    “The patent laws encourage that engineering around, as well as improvements. That is exactly why patent foster innovation rather than hinder it. ”
    Looking at patents in such a one dimensional way is not going to lead to any kind of responsible policy. Excluding others from the market can have a lot of social costs, and the patent system only fosters innovation under the conditions where the benefits outweigh the costs. Careful consideration needs to be given to under what conditions, if any, patents are the best tool to foster progress. If we can’t be sure about certain criteria, the best policy would likely be to ‘do no harm’, and in regards to patent policy, ‘do no harm’ is NOT granting a specific set of patents. To put it simply, we need to patent smarter, not patent harder, getting society the best return on investment we can.

  61. Blind Dogma January 28, 2011 5:29 pm

    Looking at patents in such a one dimensional way is not going to lead to any kind of responsible policy.

    And Bobby, continuing to ignore this valid point because it fails to fit into your pre-conceived notions (read that as less than one dimensional) will lead to even less of a responsible policy.

  62. Bobby January 28, 2011 5:46 pm

    I’m not saying that it doesn’t create opportunities, and that there aren’t advantages to having the state of the art be broad. I’m saying that it creates AND destroys opportunities, that there are advantages and disadvantages to different policies. The patent system has benefits AND costs to society, and if the patent system is going to have a net benefit, you have to weigh the benefits against the costs.

  63. Stan E. Delo January 28, 2011 10:49 pm

    BD… Perhaps a sort of teaching sort of moment, but I really don’t believe that it will work. The inventor will have to have invented something truly new and novel, or they will have to go pound sand, to use a somewhat colorful suggestion from a fellow inventor friend of mine. I think I need to investigate some R sorts of names in this case recently. I am thinking about Radical Rasberry right about now, as that would hopefully avoid any copyright or Trademark issues. Learn I must, but smart I am not guaranteed to be. At the very least, I have NOT turned to the Dark side quite yet.

    Ciao bella,

  64. Stan E. Delo January 28, 2011 11:18 pm

    Hi Bobby,

    What sort of *price* would you ask for the for the birth of a new child? Riddle me that from your anti-patent perspective. I don’t think you will be able to make any relevant objections, but I am always willing to listen to clueless *inventors*.By way of extrapolation, the *invention* should perhaps just be Given Away just because your Open Source buddies think it is a good idea? Get a Grip Bobby!!

    Sorry your particular industry has dried up, but perhaps it represents evolution in action in your case.


  65. Bobby January 29, 2011 12:18 am

    I’m not sure quite why you think you know what my particular industry is, let alone whether or not it’s dried up.

    As for the child question, it is phrased in a vague way, although I suspect I will find the comparison you want to draw, presumably between a monopoly used by the government as an incentive for innovation and a human being, disgusting and mildly unsettling. It also has a grammatical error, and because of poor word choice, the situation is not presented in a clear enough way for me to comfortably answer. Given the sensitive nature of the question, I would ask you to clarify further before I even think of giving an answer.

  66. New Here January 29, 2011 12:43 am

    The misunderstandings about Open Source are many, most of these misunderstandings are from a lack of knowledge about who is involved and using Open Source, and today, on a growing basis I will add.

    Just for an example to start with, some years ago, Apple made the decision to use an open source kernel of a Unix like operating system, that kernel is known as FreeBSD. Apple taking a legal copy of this kernel, legal in terms of the BSD license that covers the kernel. Apple created a work based upon that kernel, that work was a kernel specific to Apples needs and wants to Apple’s business. Without such a license as the BSD, Apple would have been limited, when an attempt would have been made otherwise with a non-open source kernel. Apple as others, enjoy all the work done on the FreeBSD kernel, even today, and they don’t pay for it as they would if licensed differently, but profit from it. But this is understood by all involved with the FreeBSD kernel, nothing is lost that way, when it is done free of will.

    The FreeBSD kernel is still owned by all of its’ creators, and all credit as required by the BSD license, holds their copyright(s) to their work on every page of code. Fact, Apple was legally allowed to share in that work, that Apple went on to profit by making quality products people want to buy.

    Apple is not alone, not today, many top names in the tech world are involved, and the question for someone to answer is why. Why with all of their investment in their patents, would anyone think they would join those without respect for their IP. I think not. I believe it is time for all to pay attention to the change, because large to small business, Fed Government to States, are using if not involved as well, with open source. This is not just a view or an opinion of mine– one only need look around what is going on to find out.

  67. step back January 29, 2011 6:46 am

    “nothing is lost that way, when it is done free of will”

    NH and Bobby,

    Let’s pretend that two unbelievable things happen:

    1) the US Congress abolishes patents; and
    2) a day later I invent a drug which, when injected into a person with cancer, will eradicate the cancer in one week.

    Being no dummy (another highly debatable assumption), I decide to keep my new drug as a trade secret.

    Anyone who has a cancer and wants it eradicated (even though the growing cells constitute “life” and the pro-lifers would oppose eradication) has to sign a contract with me. The contract, in its hundreds of incomprehensible pages, forces all customers (of their “free will” of course) to temporarily give up their Constitutional rights and agree to be incarcerated in my clinic for 2 weeks, where after they are free to go.

    I charge $10,000 for the 1 needle and, as said, you must stay in my clinic 2 weeks; the time it takes for all traces of the miracle drug to disappear. This way I keep my trade secret because it can’t be reverse engineered and those who of their “free will” want to be cured, well they cough up the $10K for each treatment and remain locked up in my clinic for 2 weeks.

    Soon enough, a line forms out the door and down the block of my clinic. Some “well off” people offer me (of their free will) $1,000,000 to get ahead of the line and I oblige them being the nice guy that I am.

    Hey. After all, it’s a free market and I can do what I want.

    The end result is that I have established a “monopoly” where I can set any price I want and it all came about first due to abolition of patents.

    Another result is that business prudence forces me to keep the drug a trade secret and therefore no one can use my discovery to further the progress of science by improving the drug so it works in 5 days instead of the long 7 days.

    Oh buy the bye, for this hypothetical story to work, Congress not only abolishes patents and the US Patent Office; they also abolish the FDA and the FTC. That’s a good thing you see, because it gets government “out of our way” and lets the free market take over. Everything is just beautiful after that.

  68. Bobby January 29, 2011 8:33 am

    Step Back,
    The thing about trade secrets is that they only work when they are secrets. To add a dash of realism to the mix, the technical capability for someone to safeguard such a valuable idea for 20 years is not very good. You might point to something like Coca Cola’s recipe, but it’s not quite as secret as people often think. It’s quite easy to acquire a generic cola that tastes much like Coca Cola, perhaps in some cases to an extent that the copy in double blind tests can’t be told apart from the original, meaning that the remainder of the differences are psychological. The secret of Coca Cola is not how to make cola, but the exact proportions used in Coca Cola.
    A single breach of contract reveals the secret to the whole world and makes the secret no longer a secret, and someone might circumvent your protection mechanism for example by drawing some of their own blood before those two weeks have lapsed. Perhaps they manage to physically take some of the medicine from you, or perform some kind of analysis on the medicine while in your clinic. The problem with keeping trade secrets is the same one as that with DRM, where once the protection is broken, nothing can be done to stop further copying. Also, there’s always the possibility that someone else will independently come up with the same or a similar enough formula, or an equally effective but unrelated alternative.

    Of course, keep in mind one doesn’t need to be in favor of laissez faire policies across the board to be against patents. Whether you favor large amounts of government involvement (like Obama appears to) or a more hands off approach to government (like the camp Paul Ryan seems to be in), one can still think that 17th century English Parliament knew practically nothing about economics, psychology, or game theory (even if they were the most educated on those subjects in the world at that time, they were living prior to Adam Smith or Sigmund Freud, so their understanding couldn’t reasonably be considered modern), and that while they did a good job in stopping the reigning monarch from granting arbitrary monopolies, they didn’t go far enough since they allowed monopolies to remain for inventors under very specific conditions. Two economists, Michele Boldrin and David K. Levine have made such an argument (about the policy itself, I threw in Parliament’s proficiency in economics, psychology, and game theory point) in their book Against Intellectual Monopoly. It’s laden with theory and examples to back up their stances, and one can legally acquire a gratis copy of the book online. As I’ve already said, they are economists, so they even have the advantage over lawyers and entrepreneurs writing books on copyright and patents in that their central point of how good or bad they are is actually in the field of their expertise.

  69. Blind Dogma January 29, 2011 9:46 am


    The depths we must sink to in order to teach people that “free market” does not equal “unregulated market.”

    A better first step would be for those who wish to engage in a discussion of law and economics to understand the context of those fields and how to not apply the etymology of any particular words blindly.

    I am pleased to acknowledge that I am guilt-free in association of these matters, as they say “business is business” and even though I sell the Kool-Aid, I do not exercise control over actually imbibing the Kool-Aid. I cannot be guilty of the use of the Kool-Aid, or any inane arguments arising thereof.

  70. New Here January 29, 2011 9:52 am

    @step back

    Once again going into some *all or nothing* mode because I talked about a company [Apple Inc] that made good legal use of an open Source kernel. Not only Apple as I mentioned in #66, many successful developments are based upon an Open Source kernel. One other example is the Android platform, that by the way, has no up-front cost to the phone makers from Android, thanks to the license for Android, that many it seems finding ways to put Android on almost everything that can run it. ( Note, WebOS is now owned by HP, a Linux based platform as well developed by Palm ). The Open Source part of Android is the Linux kernel, as are many of the other technologies used by Android. Note, Android phone market growth has the attention of many, from developers to investors. Real bad stuff… huh, that nasty Open Source making money for those that want to use it. Shame !

    If you hate Open Source fine, change is always that way and I personally couldn’t care less. As I said, someone needs to answer the question though, why are so many large patent holders joining up ( Linux Foundation member list ), with those bas*ards of Open Source, that have no respect for IP of patent holders. Don’t know about you, I find it damn odd and I for one would like an answer from your side… please !

  71. New Here January 29, 2011 10:06 am

    As for discussion of law and economics, Open Source is well within the law, and isn’t unregulated. Economics should be a discussion for those that understand, why the economy went south. South independent of the knowledge and tools that were to be the *rock* of the economy. So as claimed.

  72. Stan E. Delo January 29, 2011 1:05 pm


    Great analogy! It also brings to light the ultimate value of patents, which is an agreement to share the invention if any for the greater good of all, in exchange for a limited period of exclusionary rights. Why some seem to object so vociferously is somewhat of a mystery to me, and suggests hidden agendas which only they can know. As BD suggests, we might need hip waders to get through this without getting stuck in the mud created by the vandals that are trying to steal the handle off of the innovative pump and to avoid getting soiled in the process.


    Somehow I got your chosen profession as being similar to New Here’s, which was just conjecture on my part, but it served my purpose very nicely. Methinks thou dost protest too much, which begs the question of what your motives might be. The child analogy was meant to represent a truly new and novel invention, and you seem to think of the child as being way too expensive with our current patent system. What if my neighbors decided they liked my son enough that they decided to take him away from my wife and I, and I had no recourse legally? After 20 years they will need to go out into the world and try to make things better anyways, after they have hopefully been raised to become responsible adults by their natural and rightful parents.


  73. Bobby January 29, 2011 2:48 pm

    The problem with that analogy is that despite all the rhetoric calling infringers thieves, nobody can actually take an idea from you, while it is quite possible to take a child from someone. The closest that someone can come is to learn the idea from you and somehow make you forget the idea On the reverse, the closest thing to patent infringement someone could do to a child is to clone him, which raises greater concerns over fraud than theft. I’m not going to say there wouldn’t be ethical concerns with making unauthorized clones, but those concerns would be separate from theft, and would probably not apply anywhere near as much outside of humans. Of course, even if unauthorized cloning were widespread, it probably wouldn’t do much to harm production of children, since we have a biological imperative to do so.

  74. Blind Dogma January 29, 2011 6:02 pm


    Not to beat a dead horse, but this has been hashed through before. It is not the idea that is stolen – it is the patentee’s right to exclude that has been violated.

    As you are no doubt a software anti-patentist, let me draw a crude (and not fully functional) analogy in terms of copyright.

    Copyright protects the expression of an idea once fixed in some tangible media. Violating copyright, technically speaking, leaves the original copyright holder no worse off – nothing “physical” is actually taken from him. He is as whole as he was prior to the copyright violation. Except he is not. His rights have been violated. These violations can even lead to criminal prosecution (rather than merely civil).

    Now with this thought firmly in mind, review your (admittedly limited) knowledge of patents and try to remember that patents work differently than copyrights. You might notice that your cloning paradigm is a copyright paradigm – not a patenting paradigm.

    What is stolen Bobby – is not so much the “idea” (which fits into your dogma of limitless use of the same idea), but is the inventor’s sole right – the right to deny you, to exclude you from that “idea”. I put “idea” in quotes for obvious reasons (well, obvious to those who know patent law). The child here (metaphysically) is a property right – every bit as real as a child (in law) and every bit as capable of being “stolen” (although “violated” would be a better term – so if you prefer the more graphic analogy of someone raping your child and stealing their innocence, we could go there). For me personally, that’s a bit over the top – but really, the effort you put into refuting the rhetoric of patent theft is just as far – I daresay further – off the mark.

  75. Bobby January 29, 2011 6:58 pm

    First, a legal truth. Patent infringement is not seen by the courts as theft. Legally speaking, patent infringement is not theft. That doesn’t itself mean that patent infringement is not bad. Murder is not theft but is bad, despite use of expressions that one’s life is taken. Rape is not theft but is bad, despite use of expressions that one’s innocence might be stolen.
    While I don’t condone either analogy, comparison of patents to land fit much better than movable property, so if you are going to compare two very different things, at least use the less incorrect analogy. A landowner has the legal right to exclude others from their land, and violating that right is trespassing. Now, if one party trespasses on your land for a week, it doesn’t take away your legal right to stop other parties from trespassing on your land. Similarly, if one party infringes your patent, it doesn’t take away your legal right to stop others from infringing on your patent.

  76. New Here January 29, 2011 8:02 pm


    I don’t come here to protest, and I say that only if I am included in your reply to Bobby ? @#72
    Fyi: I would protest where it could make a difference, if I should ever make that decision to do so.

    I have no idea what profession being similar or not, that you came to believe was mine. Would you be willing to tell me what you think it is ?

    To have motives, I believe, could be taken as simply as someone wants something ? If so, wouldn’t that suggest that something is to be gained ?

    What, if you would tell me please, could anyone gain here, by too much protest ?
    A fair question please, what is YOUR intent, to suggest by that ?

  77. Stan E. Delo January 29, 2011 10:18 pm

    I don’t think you really want to hear what I actually believe to be true and relevant, but most likely you would just blow that off as being in someone elses’ case I would suppose even if I were foolish enough to propose something like that. The main point is that you and others like yourself are trying to destroy much of the value of US patents, which I happen to have a very large problem with. Nothing personal intended, but I Can Not agree with your views at ALL. The finger, after having writ, moves on….Bluebird on my shoulder and a rainbow just over the horizon, but I suspect you will try to ruin tomorrow with your witty reparte`

    Qver and outta here,

    BtW BD, Arguing with folks is often useless if they don’t understand the basics. Do you happen to know where rainbows live? Just turn your back directly Away from the Sun and you will find it there if at all. SED

  78. New Here January 30, 2011 12:06 am

    Enough, I support change, and the fact is, I am not alone in that change that is very real today, believe it or not — whether or not anyone can deal with it. I couldn’t care less. Please, destroy much of the value of US patents ? then I will guess that some of the largest patent holders are doing the same ?.

    Those patent holders I am talking about, are listed at the Linux Foundation website as members for one reference example, take a long look at the list and find some names you know well. Then see the fact is they do not see, a threat to their patents. How could they ? This is not just my witty reparte, it can be checked out and found to be true — without a word from me !

    I have offered many references to information many times, regardless if anyone took me up on reading them.

    I will be happy just to read from now on, all the clues that a change is happening come just from reading.
    Qver and outta here. Me too.