Supreme Court to Hear Microsoft v. i4i Arugment April 18, 2011

By Gene Quinn
February 13, 2011

On Monday, April 18, 2011, the United States Supreme Court will hear oral arguments in Microsoft  Corp. v. i4i Limited Partnership.  At stake in this case is nothing short of whether a meaningful presumption of validity for a patent will remain or whether the United States patent system is turned into a ridiculously complicated and expensive proposition that delivers innovators nothing more than a registration akin to a permit that can be challenged at will.  The fate of innovation as we have known it over the past two decades is on the line, and since strong patent rights are virtually a prerequisite to obtaining funding any downward shift in the relative strength of patents will make it harder for start-up companies and small businesses to attract the capital funds they so desperately need to expand and create jobs. 

Currently the presumption of validity is accorded great deference and in order to demonstrate that a patent claim is invalid in litigation there must be clear and convincing evidence established. This is a standard not often heard in the general public. Everyone is likely familiar with the preponderance of evidence standard and beyond a reasonable doubt standard that is employed in criminal proceedings. While legally it is an incorrect statement because percentages are not assigned, for those not marinated in the law these three standards are generally conveyed by pointing out that when the standard is preponderance the confidence level of the evidence needs to tilt ever so slightly in favor of the person challenging or the opponent wins (i.e., 51% confidence). For the beyond a reasonable doubt standard the confidence level does not need to remove all doubt, just reasonable doubt. This is sometimes articulated as a 99% confidence level. The clear and convincing standard is somewhere in between and is sometimes articulated as requiring a 75% certainty. So is it more likely than not (preponderance), is it far more likely than not (clear and convincing), is it virtually guaranteed (beyond a reasonable doubt).

There will no doubt be legal commentators who will disagree with the previous paragraph, but trust me, if you haven’t gone to law school and practiced law for many years this is a very good way to conceptualize what is at stake, and you must conceptualize what is at stake in order to understand the potential consequences.

Today it is quite difficult to demonstrate that a patent claim issued by the United States Patent and Trademark Office is invalid and should not have been issued. Microsoft, along with a great many others, is urging the Supreme Court to change that and make it easier for them to demonstrate that patent claims, and thereby the associated patent rights, are invalid and should not have been issued. A strange association of those who are large patent owners themselves are urging the Microsoft position because they are tired of getting sued on patents that they infringe and having to pay tens of millions or hundreds of millions of dollars because they have trampled on the rights of innovators. So in order to excuse their own infringement they are asking the Supreme Court to throw the entire patent system under the bus, which is sadly more likely to happen than not.

The Supreme Court typically only takes cases when there is a split among the lower Courts of Appeal, but in the patent scenario there will not be such a split because there is only one Court of Appeal that has jurisdiction over patent matters — the United States Court of Appeals for the Federal Circuit. The Federal Circuit was ironically created to bring uniformity to the area of patent law because the other regional circuits were so hostile to patent rights that virtually no patent litigated could be found valid. Those working on the legislative effort to create the Federal Circuit also hoped to reign in the Supreme Court, which itself was not particularly friendly to the rights of patent owners either.

After all, the Supreme Court had at one point in time said that magnesium and manganese were equivalent for purposes of patent infringement analysis, which is simply an erroneous factual statement that should both anyone who understands anything about chemistry.  See Graver Tank v. Linde Air Products.  

The Supreme Court also incredulously asked what utility converting hex-code into binary code could ever have since it could only be used in a computer.  When confronted with whether to allow software to be patented in Gottschalk v. Benson, Justice Douglas wrote that “the mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that if the judgment below is affirmed, the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.”  Never mind that Justice Douglas was incorrect.  The claim in question clearly was tied to a machine and the mathematical formula would not be preempted.  It could be continued to be used, just not in the fashion covered by the claim.  For proof that the mathematical formula could not be preempted the claim in question specifically required this: “storing the binary coded decimal signals in a reentrantshiftregister.”  So clearly one could employ the formula, but not the process as tied to the machine in the specified way.  The fact that it had enormous implications for computers should have weighed in favor of patentability.  Isn’t that the type of innovation we want?  Isn’t this the very type of fundamentally important innovation that the Supreme Court claimed to want in KSR v. Teleflex?

The United States Supreme Court has also explained that in order to be entitled to reliance on the doctrine of equivalents as a theory for infringement the patent owner must demonstrate that they would have been unable to draft a claim to cover the equivalent at the time the patent application was filed.  See Festo Corp. v. Shoketsu.  This means that the patent owner would have to demonstrate that the written description provided was inadequate to support the equivalent sought, meaning that the patent application does not cover the property right that the Supreme Court so generously is giving after the fact. 

These and so many other truly ridiculous patent rulings demonstrate that those who set up the Federal Circuit did exactly the right thing, although perhaps they didn’t go far enough.  They took patent rulings away from hostile judges on the various Courts of Appeal and attempted to make one de facto patent court so that it would be unnecessary for the Supreme Court to hear patent cases and continue to embarrass themselves with provably incorrect scientific statements and rulings of law that show complete and utter ignorance of the field of patent law.  Unfortunately, the Supreme Court is no longer cooperating and is taking more and more patent cases.  In this recent flood of patent cases the Supreme Court only ever does one of two things; they either overrule the Federal Circuit, or they will say the ultimate outcome was appropriate but the Federal Circuit applied the wrong test, as they did in Bilski v. Kappos.

We should expect that the Supreme Court will throw away the presumption of validity enjoyed by a patent and say that patent claims only enjoy a presumption of validity based on a preponderance standard.  That is the worst case scenario.  Essentially the Supreme Court will have one of three options: (1) keep the status quo, as urged by the American Intellectual Property Law Association, IBM and others; (2) say that prior art not considered or submitted (big difference here) to the Patent Office enjoys only a preponderance standard while that which has been considered enjoys a clear and convincing standard, as urged by Microsoft, Apple and others; or (3) say that patents enjoy a presumption only to a preponderance standards for all prior art, whether considered by the Patent Office or not. 

Frankly, option two, which is what Microsoft is pushing for and presents a certain logic, is unworkable.  There is no way that juries can be expected to sort through this patent gets clear and convincing standard and that one gets preponderance standard.  They would have to make determinations about whether a reference although not submitted to the Patent Office was cumulative and therefore gets a clear and convincing standard rather than a preponderance.  We already operate under the fiction that lay jurors can understand the exceptionally complicated technologies involved, are we going to labor forward under the far more ludicrous assumption they can make these types of fine legal distinctions based on the standard of proof as it applies to scientific references?  I think even the Supreme Court will have difficulty articulating such a ridiculous position, so that means it is clear and convincing or preponderance.  Clear and convicing means status quo, so why would they have taken the case? 

A preponderance standard is really a worthless standard.  Essentially, a preponderance standard says that a tie goes to the runner, like in baseball.  How often does an umpire yell “TIE!  Therefore according to the rules of the game I award first base to the runner.”  NEVER!  A presumption standard is really no presumption of validity at all, and who would pay the tens of thousands of dollars and years of time for a “tie goes to the patentee” right?  Such a ruling would force innovators to rely on trade secrets, thereby stripping the public of the benefit of the disclosures.  This would set back scientific advance, not forward it, given that the undeniable reality is that innovators stand on the shoulders of those who come before them. 

But what is the proof that trade secrets would rule the day?  That is what happened prior to the creation of the Federal Circuit when patent claims were routinely invalidated in every litigation.  All you have to do to look at the enormous upswing in interest in obtaining a patent is look at the number of patent applications filed prior to the creation of the Federal Circuit in 1982. 

And you can take a look at the number of patent infringement litigations commenced during a similar time period to find that there is much greater interest in patent litigation.  Interestingly, this cart demonstrates that the alleged “problem” of patent litigation is not only greatly exaggerated but is a total fabrication.  As the number of issued patents has doubled, then tripled, the number of patent litigations has followed.  A corresponding relationship is exactly what anyone who is intellectually honest would expect, and indeed what has happened.  So it seems particularly ill advised to change something as fundamental as the presumption of patent validity based on a lie in order to favor those who would prefer to infringe rather than legitimately negotiate rights they seek to trample.

There is much at stake here and everyone who needs strong patents, from pharma to biotech to independent inventors to start-up technology businesses to research & development companies need to take action.  Many of the usual suspect that would normally weigh in on an issue as important as this will be standing on the sideline because Microsoft and its allies are members of various industry groups.  For a list of those briefs filed already see Patently-O – Briefing Microsoft v. i4i: Amicus Briefs Supporting Easier Invalidation of Patents in Court. So if you have a stake in seeing patents remain strong you need to stand up and be heard.  There isn’t much time to support i4i by way of an amicus filing, but such filings could be critically important.

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 and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 178 Comments comments.

  1. patent leather February 13, 2011 6:32 pm

    If the Supreme Court takes either of your options 1 or 2 (which they probably will), then I predict there will be more lawsuits and fewer reexams. Many times I have recommended to clients to go the reexam route since the USPTO standard makes it easier to invalidate a claim than the “C&C” standard. If the standards become the same, reexam becomes a much less attractive option. Good news for litigators I guess.

    First Vista, now this. I really hate Microsoft!

  2. tifoso February 14, 2011 8:39 am

    What can we expect from a Supreme Court that simply does not comprehend technical matters. Consider the following from then Chief Justice Rehnquist, affirming in part and dissenting in part, in Daubert v. Merrell Dow, 509 US 579 (1993), “I defer to no one in my confidence in federal judges; but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its “falsifiability,” and I suspect some of them will be, too. ”

    You would hope that SCOTUS – or its clerks – would have had the foresight to contact someone or read some source so that it could find what is meant by falsifiability. But no, we have a Chief Justice who seemed to be proud that such knowledge was beyond his ken. If so, then how can we expect the current SCOTUS, populated as it is with no one with a solid background in the sciences, to understand anything at all about patents?

  3. Mike February 14, 2011 9:58 am

    THE SKY IS FALLING! THE SKY IS FALLING!

  4. IANAE February 14, 2011 10:31 am

    What can we expect from a Supreme Court that simply does not comprehend technical matters.

    Proper punctuation, for a start.

    Also, we can expect a perfectly good ruling in this case, since (as usual) the Supreme Court is not being asked to decide any technical matters. It is simply being asked what the appropriate standard of proof is, which is the same garden variety procedural question it would be in any other area of law.

    Also, unlike Bilski, only the result matters in this case. The reasoning should be an interesting read, but we’ll get all the guidance we need from a single sentence at the bottom saying what the correct standard of proof is. So that’s something to look forward to, at any rate.

    One thing we can not expect, no matter how they decide, is the end of the civilized world as we know it.

  5. Ron Hilton February 14, 2011 10:45 am

    A good patent application should be written to a target audience having about an 8th grade education. That’s about as far as most judges and juries get in their techical academic background.

  6. Mike February 14, 2011 10:53 am

    We already operate under the fiction that lay jurors can understand the exceptionally complicated technologies involved, are we going to labor forward under the far more ludicrous assumption they can make these types of fine legal distinctions based on the standard of proof as it applies to scientific references? I think even the Supreme Court will have difficulty articulating such a ridiculous position, so that means it is clear and convincing or preponderance.

    Jurors already deal with more than one legal standard in most civil cases, and in large part, they seem to grasp the differences just fine. After all, what is so difficult to understand about being 51% sure and being 75% sure. That is precisely the sort of distinction that juries are supposed to make:

    “Jury instructions:

    1. The PTO considered reference X. In order to invalidate the patent based on reference X, you must find the evidence of invalidity clear and convincing.

    2. The PTO did not consider reference Y. In order to invalidate the patent based on reference Y, you must find invalidity by a preponderance of the evidence.”

    That, coupled with lawyers’ proper explanations in closing, is pretty damn straightforward. To say that juries are unable to tell the difference between a shoulder-shrug and a confident nod is, frankly, to call them stupid. If they’re so dumb, then maybe all patent trials should be bench trials, hm?

    The standards of proof have nothing to do with the fact that they are scientific references.

    But what is the proof that trade secrets would rule the day? That is what happened prior to the creation of the Federal Circuit when patent claims were routinely invalidated in every litigation.

    Dude. Just… dude. You’re not honestly arguing that tweaking the standard of proof for invalidity a patent based on whether a certain prior art reference was considered by the PTO or not would fundamentally turn back the clock on the way patents are used, are you? Because, when someone says this, and then, almost in the same breath, makes an accusation of intellectual dishonestly, they lose credibility.

  7. Gene Quinn February 14, 2011 11:00 am

    Mike-

    Jurors do not deal with a different standard for something akin to every piece of prior art. You know as well as I do that what you are saying is simply not true.

    For obviousness the jury might have to consider 3 or 4 different pieces of prior art, some of which they might have to give a preponderance to and some of which they might have to give clear and convincing to, and that is just for one claim. How do you suppose a lay jury will figure that out?

    You say: “Dude. Just… dude. You’re not honestly arguing that tweaking the standard of proof for invalidity a patent based on whether a certain prior art reference was considered by the PTO or not would fundamentally turn back the clock on the way patents are used, are you?”

    Response: Dude. Just… dude. Absolutely.

    You say: “when someone says this, and then, almost in the same breath, makes an accusation of intellectual dishonestly, they lose credibility.”

    Reponse: Dude. Just… dude. I don’t think being correct causes one to lose credibility.

    -Gene

    You can pretend

  8. Gene Quinn February 14, 2011 11:02 am

    Mike-

    You say: “THE SKY IS FALLING! THE SKY IS FALLING!”

    This type of comment without any explanation and which could mean a variety of things is not appropriate and is something that is unacceptable on IPWatchdog.com. If you would like to participate in a debate that is fine, but this type of commenting won’t be tolerated.

    -Gene

  9. IANAE February 14, 2011 11:05 am

    I was going to say this in response to Ron’s comment:

    I can’t help thinking that if a judge doesn’t know the difference between magnesium and manganese, somebody’s lawyer did such a bad job that it borders on malpractice.

    But then I actually read (okay, skimmed) Graver Tank. It’s not a case of the court thinking that two materials are the same because they sound kinda the same. The court discussed the equivalence at length, and all the evidence appeared to suggest that while they were different substances, they worked in pretty much the same way for the relevant purpose and so they were interchangeable for the relevant purpose. This conclusion was apparently supported by significant evidence, which suggests that the parties had a fair chance to explain any differences between the two materials, and probably did a pretty good job of it.

    Even the dissents in Graver Tank only objected to manganese as an equivalent because the spec suggested it was deliberately not claimed. This is not a chemistry case. The magnesium/manganese question was decided purely on the application of legal principles of claim construction.

    These judges aren’t as bad at science and technology as we lead ourselves to believe. Maybe we should stop reducing important and well-reasoned case law to sound bites.

  10. staff February 14, 2011 11:09 am

    “any downward shift in the relative strength of patents will make it harder for start-up companies and small businesses to attract the capital funds they so desperately need to expand and create jobs”

    Bravo!

  11. Gene Quinn February 14, 2011 11:50 am

    IANAE-

    You say: “The magnesium/manganese question was decided purely on the application of legal principles of claim construction.”

    Then the legal principles are wrong because magnesium and manganese are not equivalent and that is scientific fact.

    You say: “These judges aren’t as bad at science and technology as we lead ourselves to believe.”

    You are correct. They are MUCH worse.

    Why do you continue to say such ridiculous things? You know as well as I do, and as well as any other patent attorney knows, judges are not good with science and technology.

    You say: “Maybe we should stop reducing important and well-reasoned case law to sound bites.”

    Again, I agree. Too bad that you choose for your poster child a case that is not well-reasoned and to which my sound bite was entirely correct.

    -Gene

  12. Tom February 14, 2011 11:50 am

    Gene:

    Why don’t you file an amicus brief in support of your views of the historical facts and policy considerations related to this issue?

  13. Gene Quinn February 14, 2011 11:54 am

    One more thought…

    IANAE,

    So you believe that something that is completely different should be considered a legal equivalent even if they work the same?

    Under what theory of law would you find that something that those skilled in the art view of being completely different would suffice as a legal equivalent?

    Please enlighten us with your brilliant legal analysis. I really cannot wait for your answer.

    -Gene

  14. IANAE February 14, 2011 11:59 am

    Then the legal principles are wrong because magnesium and manganese are not equivalent and that is scientific fact.

    It wasn’t a question of “scientific fact” and whether they were different chemical substances. It wasn’t a question of whether they were literally the same, or generally equivalent for all purposes. It was a question of technical equivalence for the purpose of that particular claim. It was a question of whether they could/would be used interchangeably in a welding application by a person skilled in the art of welding, who probably wouldn’t have known very much chemistry either. Why would a skilled welder care about chemical differences between two substances anyway? It could have been niobium and tin for all the judges cared. All they wanted to know was whether you could weld with one in place of the other, which it turns out you can.

    Why do you continue to say such ridiculous things?

    Because I looked at the case, and the “ridiculous thing” isn’t what you think. It’s a purely legal determination that doesn’t require any knowledge of chemistry at all, and the court wasn’t confused or mistaken in any way as to the facts.

    I know more than enough chemistry to know the difference between magnesium and manganese, and I thought the decision was quite well reasoned. Try reading it without a preconception that it’s about non-chemists getting a chemistry question wrong.

  15. IANAE February 14, 2011 12:05 pm

    So you believe that something that is completely different should be considered a legal equivalent even if they work the same?

    Well, it can’t be completely different if it works the same.

    Isn’t the whole point of equivalents to cover variants that work the same but are outside the literal scope of the claims? This is a perfect case to apply the doctrine, as the Supreme Court said in its reasons.

    Again, we’re not talking about distinct chemicals that a chemist knows are different for some other irrelevant application. We’re talking about two lumps of solder that are both known to be useful as solder. The judges knew they were chemically different. They went on at length about it. It was irrelevant. Their ultimate reasoning was essentially “this one works the same as that one for the claimed purpose, and a person skilled in the art would routinely substitute one for the other”. How is that a misapplication of the doctrine of equivalents?

  16. tifoso February 14, 2011 1:47 pm

    INNAE wrote:

    “What can we expect from a Supreme Court that simply does not comprehend technical matters.

    Proper punctuation, for a start.”

    OK. Insert a question mark at the end. Picky. Picky. Notes that are dashed off to reply to a blog are just that, notes, not articles in a learned journal, peer reviewed and triple checked. Bet Gene makes a few typos now and then, too. Why did you not jump on him? Why? Because to point out such petty errors says more about the complainer than the person who left out a question mark or misspelled a word.

    The fundamental fact remains that Rehnquist openly stated he did not know what the term meant. and seemed proud of it. He did not send a clerk to find it out. the meaning. The term had a lot to do with comprehending parts of the case which related to junk science.

    Now to make you happy I will not put a period at the end of this sentence

  17. Blind Dogma February 14, 2011 2:13 pm

    Gene,

    The lie about “exploding litigation” is even worse than you think. Far worse.

    Taking a very rough approximation from the data presented above, the proper ratio to consider is litigations commenced against cumulative, and thus enforcable, number of patents existing. The actual number for cumulative is a bit tricky (and may alter the final ratios slightly), but the actual ratio of litigations commenced per live patent DROPS from 0.18 % in 1980 to 0.11 % in 2008 (based on using 1975 as a pure baseline and computing the ratio for the data in common years shown).

    A couple of points:

    The percentage is indeed less than 1 % – currently an order of magnitude less. This speaks volumes about the relative costs between court costs and Office costs (with an annual budget in the billions with a B).

    The drop is not perfectly steady – but the trendline nearly is.

    Litigation as a percentage of live patents is excessively small and has dropped around 40% in the last 28 years.

  18. IANAE February 14, 2011 2:18 pm

    Notes that are dashed off to reply to a blog are just that, notes, not articles in a learned journal, peer reviewed and triple checked.

    You need peer review and triple-checking to put a question mark at the end of a question?

    Yes, these notes are just dashed off to the comments section of a blog, but they are also a discussion of sometimes complex and arcane legal issues. I’m sure I’m not alone in expecting and desiring a relatively high level of intelligence here, and whether you like it or not we all judge you when we see careless punctuation. mispellings, mi’splaced apo’strophe’s and ‘such. Especially in a profession that is almost entirely based on meticulous technical writing. Some of us decide that quickly whether or not to even read your post.

    Why don’t I “jump on” Gene for his typos? I don’t remember noticing any, actually. Besides, I don’t need to form a quick first impression of whether I can expect his posts to be worth reading, because I see a name I recognize at the top of them. If I thought Gene’s posts weren’t worth reading, I probably wouldn’t be here at all.

    But don’t let any of that distract you from the fact that I actually addressed your question.

    The fundamental fact remains that Rehnquist openly stated he did not know what the term meant. and seemed proud of it. He did not send a clerk to find it out. the meaning.

    I don’t know where you see his pride in not knowing what it meant. That would be a pretty shocking thing for a judge to take pride in.

    The way I read it, he was simply pointing out that this isn’t the sort of thing you could expect a judge to randomly know on his own. That means it wasn’t his job to get a clerk to explain it, but rather counsel’s job to explain it to the court in cases where it is relevant. The concept of falsifiability is quite a simple one, if it is explained right, but I certainly wouldn’t expect anybody in any profession to already know what it means unless they had a strong scientific background. At least Rehnquist seemed to recognize that falsifiability was important, whatever it was, and there were enough signatures on the majority reasons that Rehnquist didn’t really need to find out.

  19. Blind Dogma February 14, 2011 2:37 pm

    A couple of other points

    Yes I did take into account the removal of tail patents at the end of the term.

    No I did not take into account the removal of patents that expired due to lack of maintenance fee payments. However, even assuming that this is a large number, the actual percentage of litigated patents remains exceptionally small.

    The battle over the standard is most definitely not a battle over the actual litigated patents per se. This is a battle over the legitimacy of patents as an entity, as anything of value. Do you want to see a magic trick of watching some 70+% of America’s wealth disappear from the corporate books overnight? Intangible assets to become non-existent assets?

    Gene is absolutely correct in that the battle here is for the value of all patents – of each patent. The very small fraction of 1 % becomes the sliver of a tail wagging the Saint Bernard. The practical consequences should illuminate the laws of unintended consequences here – to the point that the consequences do in fact reach the archtypical “Sky is falling” proportions. Here, letting such a small portion affect the value of the overwhelming majority is quite literally bringing down the sky.

    Now, whether this is the “right” thing to do is another question. Perhaps a cataclysm of this magnitude is necessary to wake this country up. Nothing quite like being tested in the fires of adversity. That is, if you can survive the scorched earth. If not, then it is time for the meek to gain their inheritance.

  20. Bobby February 14, 2011 3:30 pm

    “Gene is absolutely correct in that the battle here is for the value of all patents – of each patent. ”
    But is it really? The patent claims that stand or fall under both standards would seem to be unaffected by which standard is used, with the only claims that are affected being those that would be upheld under C&C, but not preponderance. Using Gene’s numbers, if the evidence against a claim is above 75% or below 51%, this will change nothing. I could see it changing the market dynamics a bit, though, but that’s not inherently a bad thing.

  21. IANAE February 14, 2011 4:00 pm

    I could see it changing the market dynamics a bit, though, but that’s not inherently a bad thing.

    Well, it will mean that before someone invests money in your patent-based business they might want to inquire into the quality of your patent. I guess that really bothers some people, who want their money without being asked a lot of difficult questions about whether they’ll ever be able to pay it back. Perhaps it would reassure those lenders that if you default on the loan they can always get a government bailout.

    Also, “changing the market dynamics a bit” is somewhat understated. I have it on extremely no authority that this could instantly destroy 70% of America’s wealth. Patents are apparently of such bad quality these days that eliminating the marginal ones will nuke not only 70% of their own aggregate value, but 70% of the entire country’s wealth. At particular risk will be the quarter-trillion-dollar Microsoft, which apparently has absolutely no idea what it’s getting itself into. Not to mention the highly patent-sensitive ExxonMobil and Wal-Mart.

  22. Blind Dogma February 14, 2011 4:13 pm

    IANAE,

    I find your comment to be so enron-esque. It is all so obvious in hindsight.

  23. IANAE February 14, 2011 4:46 pm

    “enron-esque”

    Well well, someone’s feeling apocalyptic today.

    Also, what do you consider enron-esque about this? Enron was completely foreseeable, it’s just that nobody who cared also knew what was going on. You know, like indiscriminately lending money on real estate or patents without bothering to inquire into the quality of the underlying asset or its ability to protect the initial investment. That business model is perfectly capable of failing with or without our help.

    If this change makes people think about which patents are worth investing in and which aren’t, I’m all the more in favor. Let’s reclaim those glory days when the drafting skill of a patent agent really counted for something. The VCs will probably come out ahead too, and they might even hire some of us to opine on how terrific our work is.

  24. EG February 14, 2011 4:55 pm

    “The battle over the standard is most definitely not a battle over the actual litigated patents per se. This is a battle over the legitimacy of patents as an entity, as anything of value.”

    BD,

    What you say definitely resonates with me. We’re talking here about “perceptions” and the perception will be that, if the standard is lowered from “clear and convincing” to “preponderance of the evidence,” the value of patents will be perceived have lowered as well.

  25. IANAE February 14, 2011 5:07 pm

    We’re talking here about “perceptions”

    The people who invest actual money in patents and patent-based businesses won’t spend too much time fretting over the perception, as long as there’s some return on the actual patent. All they care about is making money.

    We’re the ones talking down the value of patents under a preponderance standard. Instead, we should be reassuring the public that good patents will always be good, regardless of how they are perceived, and that good patents are worth paying for.

    You don’t see McDonald’s complaining about the Taco Bell lawsuit because increased scrutiny of fast foods will be bad for the entire industry, do you? Of course not. They’re not foolish enough to imply that their own product couldn’t stand up to scrutiny. Let bad patents reflect poorly on bad patents, rather than on our entire profession.

  26. Ron Hilton February 14, 2011 7:06 pm

    I guess I’ll put in my obligatory plug for a mutli-tier patent system at this point. Not all patents are created equal. Many are portfolio bulk fiber that will never be litigated or even commercialized. A low-cost low-value tier would be fine for those. A higher tier, with a much more thorough search during examination as a prerequiste to any enforcement through litigation, thus truly meriting the C&C evidentiary standard, would only be needed for truly high-value patents for which the holder is willing to incur the added risk and cost. The middle tier, equivalent to today’s system, might actually only warrant a preponderance standard. But any patent could be upgraded to the next tier if the holder is willing to subject it to the addtional scrutiny, at an additional cost.

  27. Blind Dogma February 14, 2011 9:57 pm

    Ron,

    Consider this an obligatory rip apart of your obligatory plug for a multi-tier patent system.

    Why waste everyone’s time with your obligatory plug, when you have left such gaping holes from our previous discussions that no sane person would want your multi-tier patent system? Your tier one is not low-cost low-value, it is low-cost ZERO-value. Granted there are people who really like to throw money away for absolutely nothing, but not the type of people you would want interested in a patent system in the first place.

  28. Stan E. Delo February 14, 2011 10:05 pm

    IANEA writes in toto,
    We’re talking here about “perceptions”
    The people who invest actual money in patents and patent-based businesses won’t spend too much time fretting over the perception, as long as there’s some return on the actual patent. All they care about is making money.
    We’re the ones talking down the value of patents under a preponderance standard. Instead, we should be reassuring the public that good patents will always be good, regardless of how they are perceived, and that good patents are worth paying for.
    You don’t see McDonald’s complaining about the Taco Bell lawsuit because increased scrutiny of fast foods will be bad for the entire industry, do you? Of course not. They’re not foolish enough to imply that their own product couldn’t stand up to scrutiny. Let bad patents reflect poorly on bad patents, rather than on our entire profession.
    Somehow I had to escape *somebodys* file system to be able to reply without having my responses *organized* into *your* peculiar *numbering* system, which I happen to find to be very onerouus. Perhaps you are unable to understand things unless you are able to enumerate things such that you are able to put them into convenient pidgeonholes that you can bite off one by one? It took me a little while to figure out *who* was trying to do this, but why am I not suprised that it was a drive-by anonymous person that did not want to be identified? In my opinion you are skating on very thin ice IANEA, and I don’t happen to care even slightly if you are not an Examiner any more, or whatever your moniker happens to mean. Why should I care even slightly, as your moniker is obviously meant to confuse others, and seems dishonest to me in several different manners. Why can’t you tell us who you actually are? Is it because you are a prominent attorney that doesn’t desire to be identified like others here? BD for instance is Very Good, and he avoids causing problems for his employer I would imagine, by not dragging them into the fray by being incognito here, but somehow I happen to believe that you are just your own loose cannon here, which is not very useful in the bigger scheme of things. Sorta just like a beserker, which I have defined in the past, in case you happened to be paying attention. You will have to present substantive arguements to be taken very seriously here in my opinion, instead of just fluff and circumstance at your particular whims. Are you licensed to practice before the USPTO? An inquiring mind would really like to know. I am an independent inventor, so am desirous of knowing who you are and what your agenda might happen to be. If you can’t or won’t give us some clue about that, why should anyone give a flying fling at a rolling donut about what you happen to think about anything at all?

    Stan~

  29. Gene Quinn February 14, 2011 10:34 pm

    IANAE-

    I see you decided not to answer my question, but instead diverted again.

    You ask: “Why would a skilled welder care about chemical differences between two substances anyway?”

    Answer: They wouldn’t, but using something that is factually NOT equivalent shouldn’t result in infringement. You cannot escape the fact that magnesium and manganese are not the same thing. Also, given you are patent attorney you SHOULD know that infringement has nothing to do with what one of skill in the art thinks or understands. The question is whether you are practicing the CLAIMED invention. So your comparing apples and elephants demonstrates a complete lack of understanding of what infringement is about AND you still haven’t rationally explained why two things that are completely different should scientifically or legally be considered equivalents. Rather, you allow your conclusions to circle back and masquerade as logical support. Nice try, but it isn’t going to work.

    I must also say I found it amusing to read above about desiring a high level of intelligence in the comments. You ignore facts, you refuse to answer questions, you divert and you pretend that you know more than everyone here despite being habitually incorrect.

    Really IANAE, if you want to raise the level of debate here allow me to suggest that you take positions that are defensible, factually correct and legally correct. Responding to questions presented to you rather than diverting them would also be a welcome start.

    -Gene

  30. Gene Quinn February 14, 2011 10:37 pm

    BD-

    I see where you are going with the cumulative number of patents. I will have to look into that. My guess is that it will be tricky to pinpoint given the failure to pay maintenance fees and patents falling into the public domain ahead of time, as well as the fact that not all patents have 20 year terms thanks to the backlog. I have seen some patents issuing with 1000+ days added to the term.

    I agree with you though for sure, the litigation “explosion” is a lie.

    -Gene

  31. Blind Dogma February 14, 2011 10:45 pm

    Stan,

    Even as little regard as I have for IANAE, the call to “out” should be disregarded.

    There are many reasons for posting in anonymity. Some can be considered quite valid, for example, a managing partner at a firm is not at liberty to simply say “these are my views” – as no such disclaimer will in reality divorce the person’s views from the firm he runs. Some are not so valid, for example, to be callously indifferent to any ethical concern with twisting law, or knowingly omitting the controlling state of law (in arguing its opposite).

    Either way though, the option to post anonymously exists for good reasons. Even early in this country’s great history, debates were waged under pseudonyms.

    I recognize your desire to know the source, as IANAE’s agenda screams out a berserker, a destroyer (while Apasmara Purusha is often a better name).

    Just rest assured that the positions advocated speak so loudly that you would not hear him call out his name anyway.

  32. Jon Shields February 14, 2011 10:49 pm

    “Do you want to see a magic trick of watching some 70+% of America’s wealth disappear from the corporate books overnight? Intangible assets to become non-existent assets?”

    This kind of talk happens whenever the Supreme Court (or the Fed Circuit) considers making a decision that would weaken any set of patents in any way. At what point do we consider such talk per se laughable? I mean, if decision A would decimate America’s wealth, then decision A is made, how could decision B decimate America’s wealth if it is already decimated by decision A? Or more specifically, if someone says decisions A, B, C, D, E all would result in the apocalypse, and then all those decisions are made, how does it even make logical sense to argue that F would do the same? Either we already experienced the apocalypse (which would make decision F mostly irrelevant), or we haven’t, and the pordenter of doom was wrong time after time after time.

  33. Blind Dogma February 14, 2011 10:56 pm

    Jon,

    See the Enron comment.

    Sometimes the doom is real.

  34. Jon Shields February 14, 2011 10:57 pm

    “We already operate under the fiction that lay jurors can understand the exceptionally complicated technologies involved, are we going to labor forward under the far more ludicrous assumption they can make these types of fine legal distinctions based on the standard of proof as it applies to scientific references? I think even the Supreme Court will have difficulty articulating such a ridiculous position”

    First of all, the Supreme Court did already say about as much in KSR. The reason that case wasn’t dispositive here is because their musings about the presumption of validity/standard of proof for non-examined prior art wasn’t required for the result in KSR (i.e. it was dicta).

    Second of all, as other posters have mentioned, juries already have to juggle multiple standards of proof between infringement and invalidity. For each argument they are considering, they know they either have to be “convinced” or “really convinced” depending on the argument. I don’t think it’s a huge leap to move some of the invalidity arguments into the “convinced” category.

    Finally, if a lay jury doesn’t understand the “exceptionally complicated technology involved,” and therefore they just defer to the patent office on prior art that they never examined, isn’t that a bad thing? In other words, wouldn’t the lack of understanding factor cut in favor of reducing the burden (for non-examined prior art), so juries don’t just reflexively throw up their hands and defer to the patent office (when no such deference should be given for that prior art)?

  35. Stan E. Delo February 14, 2011 11:02 pm

    Gene writes in small part:
    You ask: “Why would a skilled welder care about chemical differences between two substances anyway?”

    Because even the most skilled weldor in the world would ruin his whole day if he was foolish enough to light the candle while trying to weld Magnesium. It would literally melt a hole in the Earth, and when trying to put the *flame* out by throwing the Magnesium into H2O it would rip the H2O into Hydrogen and Oxygen and probably cause a Very Large explosion! Mangenese would Never cause an explosion like that as far as I am aware of.

    Stan the erstwhile Weldor

  36. Jon Shields February 14, 2011 11:02 pm

    BD, as a factual matter, I don’t think the “doom is real” here. (The patents that will “lose value” are patents that can be proved invalid with a preponderance of the evidence with no appeal reversal, which probably shouldn’t have been issued in the first place. On the other hand, patents that easily meet both standards won’t be affected.)

    But as a more general, abstract matter, the doomsayers would have a little more credibility in general if they weren’t always predicting doom.

  37. Stan E. Delo February 14, 2011 11:14 pm

    Very clearly understood Blind Dogma, but as an American citizen I am Not required to like it very much. To each their own I suppose, but I do not happen to be constrained in that manner fortunately, as I don’t happen to be licensed to practice law or prosecute patent applications.

    Stan~

  38. Gene Quinn February 15, 2011 12:17 am

    Jon-

    What you are saying about “doomsayers” is rather hollow. You say, as a matter of fact, that you don’t think the doom is real. I suppose we are just supposed to take your word for the assertion of fact because you never say why, instead choosing to ridicule those who predict doom because they predict doom too often.

    I’d love for you to explain what you mean by “patents that easily meet both standards won’t be affected.” Your response suggests you are not familiar with the process. Patents don’t have to meet any standard, what is at stake is how easy is it to defeat patents after the federal government has granted the patent. You also focus on bad patents that should be issued in the first place. That is all well and good but those patents are not the ones that support industries and lead to investment, yet making patents easier to challenge will make them weaker and that will certainly have implications for funding start-ups. No one seriously engaged in the industry would suggest otherwise.

    I would also like to remind you and others who want to criticize “doomsayers” that the “doomsayers” are frequently correct. I for one have been criticized frequently and pretty much most of what I predict actually turns out to be correct. I was told that my reading of KSR was ridiculous, but now look at what the Federal Circuit has ruled. It seems that I was exactly correct, as I am here in this article as well.

    Finally, after talking lovingly about the Supreme Court you then postulate that juries deferring to the Patent Office is a bad thing. It would seem you are not that familiar with Supreme Court precedent. When the Patent Office rejects patents they are entitled to extreme deference, as ruled by the Supreme Court. That same Supreme Court would be incredibly intellectually dishonest not to likewise demand extreme deference when the Patent Office issues patents. You just cannot have it both ways.

    I think you need to actually read the Supreme Court patent cases and notice all the things they get wrong. They don’t understand science and they don’t understand patent law. They make rulings that are ridiculous and they don’t appreciate the ramifications. There is no way they knew they were saying that to be entitled to the doctrine of equivalents you must demonstrate your patent application was defective as of the time of filing. They just don’t get it, and those who want to pretend that a change in the standard is meaningless don’t get it either.

    -Gene

  39. Ron Hilton February 15, 2011 12:34 am

    “tier one is not low-cost low-value, it is low-cost ZERO-value”

    The economic value of a piece of IP is a function of BOTH the intrinsic value of the invention AND the degree to which the legal rights to it have been perfected. A highly valuable invention for which no timely patent application has been made has zero value. A worthless invention which has successfully undergone patent examination, appeal, reexamination, and litigation with appeals all the way to the Supreme Court to secure the legal rights to it also has zero value. A multi-tier system only addresses the legal rights side of the value equation. But even the lowest tier stakes a claim to an invention, which if it has any intrinsic value, has the potential to fully realize that value if the rights to it are perfected. That is definitely worth something. One cannot perfect ownership rights that were never asserted in the first place. But a worthless idea is still worthless no matter how much time and money is spent perfecting the IP rights to it.

  40. Jon Shields February 15, 2011 12:54 am

    “you then postulate that juries deferring to the Patent Office is a bad thing”

    Actually, I do not think that deference is wrong in general. I was specifically talking about where prior art was not considered (in which case there is no reason for deference with respect to claims of invalidity relating to that prior art). In cases where there isn’t a case to be made for deference, there should not be a “clear and convincing” escape hatch for juries to avoid doing their job and instead rubber stamp the patent office’s examination (when the PTO did not consider the prior art), especially when the juries do not understand the subject at hand (making an escape hatch from doing the hard work of weighing the evidence all the more tempting for the jury).

    “You also focus on bad patents that should be issued in the first place. That is all well and good but those patents are not the ones that support industries and lead to investment”

    This argument (that we should be more concerned about “good” patents being invalidated than “bad” patents being upheld) seems to be prevalent throughout your posts, so I want to make sure I understand it. In the criminal context, it is said that it is better to let 10 guilty people go free than to convict one innocent person. We codify that by ensuring that juries only convict based on proof beyond a reasonable doubt.

    In the patent context, my sense of your argument basically comes down to saying it is better for x “bad” patents to be upheld (resulting in judgments/injunctions against companies for “infringing” on “bad” patents) than 1 “good” patent to be invalidated, for some x greater than 1. Is my sense of your argument correct? If so, how high should x be? How far should the system be skewed against defendants before it becomes problematic to you? Because while this is obviously a very rough analogy, it is the core point of the i4i case.

    The clear and convincing standard, standing in isolation, would would mean some x greater than one. (In other words, it is better to uphold some “bad” patents than it is to invalidate one “good” patent.) But when the patent office does a good job examining prior art, this impact is mitigated. The system says it is OK if the jury errs on the side of validity, because the patent has already been through an examination by technically competent examiners.

    But when the patent office didn’t look at a particular prior art, your argument (that we should keep the CaC standard, since we should be more concerned about the invalidation of “good” patents that produce innovation/jobs/etc) literally says that it is OK to allow many “bad” patents to stand to reduce the risk of throwing out “good” patents (with no mitigating check of patent office examination of that piece of prior art).

  41. step back February 15, 2011 6:34 am

    Dear Jon Shields,

    My blood boils and knuckles turn white when I see yet another well meaning fellow human being giving in to “sound logic”, meaning that it sounds good and therefore they conclude it’s logical.

    Sound and logic have little to do with one another.

    Let’s look closer at your notion of:

    “where [a piece of so-called] prior art was not considered [by the USPTO] (in which case there is no reason for deference with respect to claims of invalidity relating to that prior art).

    What specifically makes a document “that” prior art instead of “this” prior art?
    What does “considered” mean?

    It is often the case that members of a tech team at a big company will take turns at being named as first author for different articles they write about a same new product.

    In other words, if Adams, Boyer and Challenge all helped develop the new Dongle-II Device, then a patent application may be filed where Adams is named the lead inventor and hence forth “that” document is referred to as the “Adams patent”.

    Later, when the same team authors a peer paper for Dongle Technology Today magazine, they decide to let Boyer be the first named author and “that” document is referred to as the “Boyer’s” paper. (It is not word for word identical to the Adams patent.)

    Yet later, a journalist for the Dongle Technology News website comes to interview the group and only Mr. Challenge is available to talk to the journalist.

    You should start seeing the picture now. There is an “Adams document” (the team patent). There is a “Boyer’s” paper and there is the “Challenge news article”.

    The USPTO decides to “consider” the “Adams document” (the team patent) as prior art when the Patent Office determines patentability for the Engleweird Dongle-III Device (newer, faster, cheaper, better).

    Later, during litigation, the crafty attorneys on the anti-Engleweird side argue that the “Boyer’s” paper is a “that” piece of prior art rather than a “this” piece of prior art and they also argue that the USPTO has not “considered” the “that” piece of prior art, therefore deference should not be given.

    We in the business call it “merely cumulative art”. However, those who are outside the business and are easily swayed by “sound logic” may conclude that Adams doesn’t sound like Boyers and therefore it sounds fair that deference should not be given.

    It all sounds good.
    But none of it is fair or right.

  42. Gene Quinn February 15, 2011 9:58 am

    Jon-

    You say: “I do not think that deference is wrong in general. I was specifically talking about where prior art was not considered (in which case there is no reason for deference…”

    It seems you are not familiar with patent searching. Why don’t you define “was not considered” so we can all be on the same page and so I can prove to you that you are incorrect?

    What does it mean for prior art not to be considered? In any patent search hundreds, if not thousands, of references are found and the overwhelming majority never make it onto any patent search report because they have been weeded out during the searching process as not being as relevant as others, cumulative or perhaps being irrelevant altogether. So there is no way to know whether any particular reference was “not considered” by a patent examiner or patent searcher. If you are encouraging a standard where every piece of prior art located is considered then you obviously are not familiar with patent searching.

    You see, the Patent Office is supposed to be given deference. Any agency is supposedly given deference unless what they do is arbitrary and capricious. It is NOT arbitrary and capricious to set workflow standards for examiner throughput. It is NOT arbitrary and capricious to have search reports focus on the prior art that is most relevant and not chronicle all the things that are weeded out. Thus, the Patent Office and the decisions of the patent examiner should be granted extreme deference. In my opinion we already have the wrong standard in place. If patent denials are reviewed for abuse of discretion then patent grants should be reviewed using the same standard. Anything else would be illogical.

    -Gene

  43. IANAE February 15, 2011 10:02 am

    Gene: You cannot escape the fact that magnesium and manganese are not the same thing.

    Nobody is trying to “escape” that fact. I know they’re not the same thing, and all the judges knew they’re not the same thing. That’s why they don’t literally infringe. They’re equivalent because they’re well known to be interchangeable for the purpose of the claim. If you went up to a welder and asked “are these two different things equivalent?” you’d get a resounding “yes”.

    Gene: Also, given you are patent attorney you SHOULD know that infringement has nothing to do with what one of skill in the art thinks or understands.

    Of course it does. Literal claim construction is based on what one of skill in the art understands by the claim terms, and the scope of equivalents is based on what a person skilled in the art would consider equivalent.

    Gene: AND you still haven’t rationally explained why two things that are completely different should scientifically or legally be considered equivalents.

    Because they’re not completely different. They’re both perfectly equivalent and interchangeable as far as the relevant art is concerned. They behave in exactly the same way, and experts in the field knew that you could substitute one for the other.

    Gene: Really IANAE, if you want to raise the level of debate here allow me to suggest that you take positions that are defensible, factually correct and legally correct.

    I suggest that you actually read the case before taking the intellectual high ground.

    Stan E. Delo: Because even the most skilled weldor in the world would ruin his whole day if he was foolish enough to light the candle while trying to weld Magnesium.

    That might be a valid statement if we were talking about the first person in the world who has ever tried to weld metallic magnesium. But we’re not. There was ample evidence that magnesium works just fine for its purpose. It was the claimed invention, and the patentee was using magnesium in its product. And it wasn’t actually metallic magnesium (which no fool would ever weld), but the considerably less flammable magnesium silicate. But again, I’m clearly dealing with someone who hasn’t read the case.

  44. Stan E. Delo February 15, 2011 3:33 pm

    IANEA-
    The only point I was trying to make is the same one I believe Gene was trying to make, wherein Magnesium and Manganese are different ELEMENTS, and therefore by definition are not equivelent according to the Periodic Table of Elements. Maybe you would like to try some of my new Milk of Manganese perhap? I can certainly understand if you choose to be incognito, as BD reminded me of Again, so please pardon me for getting a bit hot under the collar earlier.

    Stan~

  45. IANAE February 15, 2011 3:59 pm

    The only point I was trying to make is the same one I believe Gene was trying to make, wherein Magnesium and Manganese are different ELEMENTS, and therefore by definition are not equivelent according to the Periodic Table of Elements.

    I know that’s the point you and Gene are trying to make. You don’t need to make it. I know they’re not the same element (I first said it in post 10), and even the panel that decided the case mentioned that they’re not the same element, or even the same type of element.

    The point I’m trying to make is that “are they the same chemical element?” is not the test for infringement by equivalents. It’s the test for literal infringement. The test for equivalence is (essentially) whether a minor change (i.e., not exactly the same thing) is an insubstantial change that captures the essential benefit of the invention while technically avoiding literal infringement. It doesn’t matter what other similarities or differences the two things have that would not be relevant to that particular application. The person skilled in the art of welding (for example) is not a chemist, a biochemist or a physicist. They could be completely dissimilar except for that one use, but as long as they’re known in the art to be interchangeable for that one use, they’re equivalent.

    The court showed quite a profound technical and legal understanding, if you bother to read the decision. There was lots of evidence presented at trial and referred to by the Supremes regarding whether the two different compounds would be used in the same way to produce the same result. It’s very clear that they knew exactly what they were talking about.

    Here, this is from page 610 of the decision Gene linked in his article: “Lincolnweld’s composition is similar to Unionmelt’s, except that it substitutes silicates of calcium and manganese — the latter not an alkaline earth metal — for silicates of calcium and magnesium. In all other respects, the two compositions are alike. The mechanical methods in which these compositions are employed are similar. They are identical in operation, and produce the same kind and quality of weld.

    Gene is trying to portray the Supremes as a bunch of out-of-touch old men with thick glasses who can’t distinguish two substances that have some of the same letters in their names. They’re really not. Not only did they get the facts right in this case, but they had the sense to defer to actual experts in the field.

  46. Stan E. Delo February 15, 2011 6:37 pm

    So what part do you think he got substantively wrong? Nothing that I have been able to discern so far, but perhaps I have overlooked something? Do you really think any of the Supreme Court Justices have ever even thought to LOOK at a patent beyond a casual glance before and really consider what they represent? You might perhaps be a bit deluded if you actually happen to believe something like that. Sorry it doesn’t happen to be convenient for you to consider that, but it is what we will all have to deal with, whether you or I happen to agree with their decision or not. Pretty sad in a way, when the highest court in the US is apparently not able to comprehend the concept of Intellectual Property that has worked so well for Americans for more than 200 years.

    Stan~

  47. Jon Shields February 15, 2011 9:07 pm

    “Any agency is supposedly given deference unless what they do is arbitrary and capricious.”

    As I’m sure you know, an infringement action is not governed by the “arbitrary and capricious” standard in the Administrative Procedures Act. And it is a good thing — it would make little sense to have the result of an ex parte proceeding to be the final word in an infringement suit (though I’m sure patentees would love this).

    “they have been weeded out during the searching process as not being as relevant as others, cumulative or perhaps being irrelevant altogether”

    So? If something has been “weeded out” as so irrelevant that it is not worth mentioning, then the patentee would have nothing to fear from a preponderance standard for claims of invalidity relating to that piece of prior art. If it wouldn’t pass the laugh test, it is not going to pass the preponderance test.

    “Thus, the Patent Office and the decisions of the patent examiner should be granted extreme deference.” Of course any patentee would want that. In fact, I doubt a patentee would mind if their patent was just automatically granted without examination. However, the reason we have examinations and judicial review (and the reason why the Supreme Court ruling might disappoint you) is to balance the interests of both sides. Does deferring to an administrative agency decision that they never actually made (with respect to prior art they did not examine) make sense? Of course not.

    You do a great job of articulating the most pro-patentee position possible, but you have yet to convincingly explain why that position should be adopted (other than the fact that it is pro-patentee). In the end, your position comes down to being OK with x infringement actions based on “bad” patents being sustained, so long as 1 “good” patent is not thrown out. But you have yet to articulate what value of “x” you think is appropriate. You certainly seem to be OK with a high value of x (judging by the fact that you think an “arbitrary and capricious” standard of reviewing an ex-parte determination is somehow logical), but you have yet to state that. What value of x do you think appropriate?

  48. Stan E. Delo February 15, 2011 10:18 pm

    Spoken by very well by a very determined Litigator I would imagine Jon. Somehow you seem to have forgotten to mention the nascent value of patents however, which I happen to find to be a bit dissappointing in several senses. I would like to point out out that you most likely would not have a job at all unless there happened to be inventions and the concommitent litigation that arises from *bad* patents or patent applications. It seems to me as if *bad* patents are actually very few and far between, at least here in the US, so perhaps you might be jousting at windmills like Don Quixots in some senses. I happen to be developing new types of wind turbines, so have a bit of experience in that area. Otherwise I would gladly take one for the team, so to speak, in the interest of keeping things reasonably civil and intelligent in the intererim. I get somewhat hot under the collar once in a while my own self, but there are far larger things than either you or I and our particular opinions in most situations. I happen to be very Scottish and Welsh myself, but that is really neither here nor there in the bigger picture.

    Stan~

  49. Ron Hilton February 15, 2011 10:43 pm

    In my opinion, the evidentiary standard for invalidation is not nearly as important as that no material evidence (i.e. prior art) be overlooked. That doesn’t mean that every possible piece of prior art needs to be considered or reconsidered by the court. It’s up to each litigant to do their homework and present the best evidence that they have. It only takes one piece of valid prior art to invalidate a claim.

  50. Stan E. Delo February 15, 2011 11:26 pm

    Very well spoken Ron. If I happened to miss a perhaps glaringly obvious prior art reference that I should have found while doing my prior art search, my patent application should definately Not be allowed. All it would take is a perhaps Romanian allegation or allusion to a similar concept for my *invention* to be considered to be toast in most of the rest of the world. Fortunately I seem to have escaped all of that, which I happen to find to be pretty amazing. I have searched about 5000 relevant patents, and have found nothing that would seem to obstruct any of my claims so far. It is a fairly crowded area of art, so I consider myself to be very lucky so far. I happen to be looking at several other things as I go along, so might be able to dodge prior art as I go along if needs be.

    Stan~

  51. Blind Dogma February 15, 2011 11:41 pm

    It’s up to each litigant to do their homework and present the best evidence that they have.

    One major problem, Ron – Tafas

    What you suggest is that the applicant examine his own application (albeit in a court room setting). In case you haven’t heard – this was ruled illegal. Once you understand this, you might be on your way of understanding why the administrative agency charged with examination (by law) is given deference of having actually done its job.

    Your next step “It only takes one piece of valid prior art to invalidate a claim. is to realize that no one is arguing that one piece of valid prior art is what it takes to invalidate a claim – the discussion is what it the level of vallidity that must be overcome. What is considered typical prior art (patents and publications) satisfy the Clear and Convincing standard. Hearsay evidence won’t cut it.

    Let me guess Jon – your x = 0 because you simply do not believe in patents at all. Close your eyes and repeat after me “not convincingly… not convincingly…” Be careful chugging the Kool Aid with your eyes closed.

  52. Bobby February 16, 2011 12:07 am

    Stan,
    “It seems to me as if *bad* patents are actually very few and far between, at least here in the US, so perhaps you might be jousting at windmills like Don Quixots in some senses. ”
    I’m sure many would disagree, but that’s not really relevant to the question at hand. First, let’s identify which patents would be harmed by a change from C&C to preponderance. It would only be those with claims that won’t hold up under preponderance, but will hold up under C&C. These claims are already more than likely to be invalid, so at least on paper, that means for every ‘good’ patent that this change harms, we will have taken down at least one ‘bad’ patent. If we use Gene’s percentages on certainty, than it will be between a 1:1 to 1:3 ratio. If you are in a crowded art field and are quite sure your patents are good, a change to the presumption standard could actually be a windfall for you if you have competitors whose patents aren’t as good.

  53. Jon Shields February 16, 2011 3:31 am

    “Let me guess Jon – your x = 0 because you simply do not believe in patents at all.”

    I guess that would mean you guessed incorrectly.

  54. Blind Dogma February 16, 2011 8:28 am

    First, let’s identify which patents would be harmed by a change from C&C to preponderance. It would only be those…

    Wrong – this shows that you miss the entire point here Bobby.

    Open your eyes – wake up. Such a change affects all patents. Such a change affects how the entire US patent industry is viewed. Regardless of actual strength of individual patent, the risk of being dragged into court will have been increased – especially by those with deep pockets. The increased chance to bamboozle a lay jury will just be too tempting to those with a reason to try to destroy a patent that blocks their way – whether the patent has been properly granted or not.

    There is an amazing amount of idealized human behavior (mistaken notion that defendants only challenge “bad” patents) and an alarming lack of recognition for the law of unintended consequences (only “bad” patents will be affected) for those framing the problem in a much too narrow manner. And once again, we see the problem is in how you are framing the problem.

    On the plus side, Kool Aid sales remain high.

  55. Bobby February 16, 2011 9:11 am

    “Regardless of actual strength of individual patent, the risk of being dragged into court will have been increased – especially by those with deep pockets. ”
    Wait, I’m not sure I’m even understanding the scenario you are proposing. Under what situation are patent holders being dragged into court? Patent holders are generally the plaintiffs, so it would seem that by ‘ being dragged into court’, you mean that they aren’t as capable of an out-of-court settlement. Of course, while defending yourself against even an illegitimate patent is still more expensive than settling, the chances of actually having to use the legal system probably remain low.

    “mistaken notion that defendants only challenge “bad” patents)”
    Where did you get that idea from? If your patent is “good”, then it ought to stand up to the preponderance standard. If evidence is really on your side, you might even be capable of beating a clear and convincing standard that your patent is valid. At least on paper, if the evidence suggests a claim has a less than 50% chance of being valid, than it’s going to be valid in less than 50% of the time this happens.

    “he increased chance to bamboozle a lay jury will just be too tempting to those with a reason to try to destroy a patent that blocks their way – whether the patent has been properly granted or not.”
    That’s ignoring the decreased capability of juries being bamboozled into upholding invalid patents. Destroying a patent that was improperly granted is a good thing, as it shouldn’t be blocking anyone’s way.

  56. Ron Hilton February 16, 2011 10:14 am

    “What you suggest is that the applicant examine his own application ”

    No, quite the contrary. I believe it should be up to the accused infringer to produce evidence of invalidity. And conversely, up to the patentee to rebut that evidence. Actually, I’ve always thought it highly ineffective to require the patentee to disclose prior art via an IDS. Kind of like asking the fox to guard the henhouse. And then slapping the fox with a charge of “inequitable conduct” after there’s nothing left but chicken feathers. By far the best way to increase the presumption of patent validity would be to increase the breadth and depth of the prior art search. And browbeating the patentee to do it is not the right answer. Talk about a conflict of interest! Article One Partners has a much better model.

    “Hearsay evidence won’t cut it.”

    Agreed. I don’t think anyone is suggesting that.

  57. IANAE February 16, 2011 12:42 pm

    Stan: Pretty sad in a way, when the highest court in the US is apparently not able to comprehend the concept of Intellectual Property that has worked so well for Americans for more than 200 years.

    My point, actually, is that they understand the concept better than we give them credit for. If we read the decisions instead of wallowing in our own preconceptions about how anti-patent they supposedly are, we realize the situation isn’t nearly so dire.

    Infringement by equivalents is a big part of “looking at a patent beyond a casual glance and really considering what it represents”. It’s about telling people who have made minor changes to technically escape the literal claim that they are still infringers because they have taken the essence of the invention. You may recall the huge public outcry more recently, when Festo severely weakened the doctrine of equivalents. That’s because equivalents are good for patentees, and the Supremes did a good job in Graver Tank of standing up for that patentee and determining that two things were equivalent. Not to mention softening the impact of Festo when the Federal Circuit went on another one of its bright-line-rule crusades.

    Maybe all this was too confusing because I was defending a pro-patentee decision. It goes against my fearsome reputation as the Nijel the Destroyer of the patent world.

  58. Stan E. Delo February 16, 2011 1:17 pm

    Hardly fearsome I dare say, and I prefer Suva, the Destroyer of Worlds, which is a Hindu Goddess with multiple arms. I think it is the one depicted on the cover of Jimi Hendrix’s first album, entitled “Are You Experienced”

    ” No, no son, you’re confused! The Sun isn’t going down, the Earth is coming Up! ” quoted from the always irreverent Firesign Theater of the Mind, circa the early 1970’s or so. I think I will go ahead and buy that surplus 500 gallon SS vat that I saw at the scrap yard the other day, as it looks like I will need it. Copernicus, and all like that, wherein the perception of our place in the Solar system and the Universe was radically changed forever.

    Stan~

  59. Bobby February 16, 2011 1:42 pm

    Stan,
    Most transliterations I’ve seen use ‘Shiva’, and the cover you are thinking of is Axis: Bold as Love, Hendrix’s second album. Allegedly, Hendrix asked for the cover to reflect his ‘Indian’ heritage, which was misunderstood as meaning the people of India as opposed to Native Americans, often called ‘Indians’ in American parlance.

    Despite the usage of dirty, ‘communist’ copyleft licensing and heavy dependence upon American fair use, Wikipedia is a great resource for checking minute facts like that, as is a quick Google search (or Bing if you don’t trust companies with heavy involvement in FOSS).

  60. Stan E. Delo February 16, 2011 2:39 pm

    Yes, that is correct, as I believe Hendrix was part Cherokee on his mother’s side if I recall it correctly, and he grew up about 5 miles away from where I grew up next door to Sewad Park but he was about 10 years my senior. Perhaps go look up his Pali Gap performance in Hawaii on U-Tube if you like his music at all, which is very haunting in a musical sense. My style of guitar is very similar in a few different ways, but I would not ever claim to be Anywhere near as talented as he was. Interestingly enough, Seward Park was named after a legislator, who is famously known as the author of legislation that later came to be known as “Seward’s Folly”

    Stan~

  61. Bobby February 16, 2011 3:57 pm

    I am quite a bit of a fan of Hendrix, although I’ve never been much at lead guitar or lead anything, instead attempting to make up for it by learning a lot of contorted chords and attempting to get at least modest levels of proficiency at several instruments.

    And yeah, ‘Seward’s Folly’ eventually turned out to be quite profitable. However, it struck me as a weird thing the US ended up buying it from Russia, when geography would suggest that it should have been part of Canada, at least at some point. A bit of research on the subject, which history classes didn’t seem to cover well, explains the situation, but looking at a map, I can’t help but feel that Canada got cheated at least a little bit. I’d also be interested in hearing Wayne’s view on this as a Canadian, if he happens to be around.

  62. Stan E. Delo February 16, 2011 4:27 pm

    Yep… Americans at the time thought that *buying* Alaska from the Russians was a very bad idea at the time, but what value of hindsight did they have? None at all, and My Aunt and Uncle have lived there for about 50 years and have done very well for themselves indeed. Uncle Cork has been a Civil engineer there for years, designing highways and airports and marine ports for instance. I think the Russians were pretty destitute at the time, but that is just conjecture on my part.

    Stan~

  63. IANAE February 16, 2011 4:53 pm

    Stan: Americans at the time thought that *buying* Alaska from the Russians was a very bad idea at the time,

    Once again, Wikipedia shows its liberal bias: “American public opinion was generally positive, as most editors argued that the U.S. would probably derive great economic benefits from the purchase; friendship of Russia was important; and it would facilitate the acquisition of British Columbia.

    Further down the page: “Many Republicans scoffed at ‘Seward’s folly,’ although their criticism appears to have been based less on the merits of the purchase than on their hostility to President Johnson and to Seward as Johnson’s political ally.

    Conservapedia identifies those “Republicans” only as “skeptics”, probably because Seward was later vindicated by large local deposits of gold and Palins.

    Funny thing, hindsight. Oh well, at least Republicans haven’t changed.

  64. Stan E. Delo February 16, 2011 6:02 pm

    A large amount of the art of Magic is the misdirection of the attention of the viewers while the *Magician* is doing something else that the audience is not looking at. Sleight of hand in other words. Is it dishonest? Most definitely! Is it harmful? Usually not in most cases, but in this case I think MS intends to do very severe harm to the value of US patents to make themselves more profitable and bully any challenging parties into submission with their nearly endless supply of litigation funding. As simple as that, whether you or I happen to like it or not. The really tragic part is that the Supreme Court seems to be *buying* it, and their decision could very well cripple or emasculate the value of most US patents with a single decision, which might take decades to try to *fix* since they are basically the end of the road as regards the letter of the law short of a Congressional fiat to the contrary. Very bad times for American inventors it would seem to me, but I might have a few tricks still left up my sleeves. The real trick here is to Never let the audience know what is going to happen next, or how it was done. Rabbits out of a Silk Top Hat? White Doves out of their breast pockets? Only the magician really knows, and he probably won’t take the time to explain it to you if you don’t happen to know how it was done.

    Vanishingly yours,
    Stan~

  65. Stan E. Delo February 17, 2011 3:03 am

    IANAE-

    This is one of my all time favorites from Jimi, and you can tell that it was recorded in his Electric Ladyland studio in New York, after Jimi started doing his own sound editing, with the resultant very curious and creative stereo effects. Best played pretty loud, or why even bother? Also right next to the full-screen button you will find the much earlier original Little Wing recording from Axis: Bold as Love.
    http://www.youtube.com/watch?v=WoAXW30mMAg&feature=related

    Stan~

  66. Stan E. Delo February 17, 2011 3:38 am

    Here’s Stevie Ray Vaughn’s take on Little Wing, which is an amazing tribute to Jimi, and he said it took him more than a year to learn how to play it well enough to consider playing it before a large audience.
    http://www.youtube.com/watch?v=zAG-kX_IlUw&feature=related

    I happen to think he pulled it off pretty well indeed. Seattle to Austin Texas.
    Stan~

  67. IANAE February 17, 2011 9:46 am

    A large amount of the art of Magic is the misdirection of the attention of the viewers while the *Magician* is doing something else that the audience is not looking at.

    A large amount of the art of magic is making it look like the audience participant is the one doing the trick.

    in this case I think MS intends to do very severe harm to the value of US patents to make themselves more profitable and bully any challenging parties into submission with their nearly endless supply of litigation funding.

    There are companies that want to severely harm patents, and there are also patentees that want to severely harm companies.

    There are also companies that just want to carry on their own business, and patentees who have a really clever invention and just want to be left alone while they sell enough of it to recoup their startup costs and feed their families.

    This isn’t going to get solved by shouting and name-calling. The Supreme Court took the case, but hasn’t decided it yet, so let’s not get carried away about what imagined horrors they’ll unleash on the public. I’m sure the panel will be sensible enough to hear the arguments on both sides and give a reasoned decision that strikes an appropriate balance without stooping to the self-interest and vitriol that has dominated this issue in the blogs.

    And let’s not forget that this is, at bottom, an economic issue. Nobody is going to go to jail over this. We all want money, and we’ll all keep trying to get it no matter what happens in this case. The economy will readjust to the new equilibrium, as it always does.

  68. Blind Dogma February 17, 2011 12:14 pm

    I’m sure the panel will be sensible enough to hear the arguments on both sides and give a reasoned decision

    And I am sure that this comment shows that you do not understand law in the least. WAKE UP. Law is not an ivory tower exercise. The “vitriol” is merely evidence that very strong forces have very strong interests in play here. If nothing else, this screams for people to make their voices heard.

    The only reason why it appears that you are calling for a “ceasefire” to the shouting, is that your position is getting hammered. Gene has already called you out on the methods you typically apply at Patently-O – those methods of twisting law and twisting what people say simply do not fly in this forum. The fact that Gene runs a tighter ship here is one reason why he is the one that nabs the high power exclusive interviews. This forum is one that is interested in patent law. I notice a particualr difference over the last few days, wherein Patently-O dialogue only too eagerly dissolves into discussions of pure politics and military spending – topics that have nothing to do with the actual Patent Law issues. It is thus no surprise that your philosophical views suffer here, and no surprise that you seek to lesson the impact of the philosophies actually on topic.

  69. step back February 18, 2011 6:26 am

    The Supreme Court took the case, but hasn’t decided it yet, so let’s not get carried away … I’m sure the panel will be sensible enough to hear the arguments on both sides and give a reasoned decision that strikes an appropriate balance

    1. There are people who are more than 101% “sure” the world was created in 6 days just like the Bible says. Being “sure” is not an indicator of rational thought.

    2. Who said there were only two (“both”) sides? What if there are 10? Court procedure is such that only the insular issues created by the warring parties rise to the floor.

    3. Who says that “balance” is the appropriate result? What if imbalance is the correct result?

    In the past few years the U.S. Supreme Court has made disastrous decisions about patent law: KSR, Bilski, etc. Their track record is simply not a good one.

    They are just too out of touch with the real worlds of science, R&D, and patent practice to make informed and “sensible” decisions. That is what keeps some of us awake at night.

  70. Anon February 18, 2011 7:48 am

    and there are also patentees that want to severely harm companies.

    For a so-called friend of patents, your “infringers-rights” side sure comes out in almost every post.

    Reminds me of the saying – with friends like you, who needs enemies?

  71. IANAE February 18, 2011 10:11 am

    For a so-called friend of patents, your “infringers-rights” side sure comes out in almost every post.

    Sure, if you cut out the part of my post that says the opposite.

    Or do you deny that there are any patentees who would put established companies out of business for their own benefit? I refer you to RIM and eBay for discussion purposes, as well as to anybody who has ever had a patent infringed by a direct market competitor.

  72. Blind Dogma February 18, 2011 11:18 am

    Or do you deny that there are any patentees who would put established companies out of business for their own benefit?

    The denial or affirmance of your question is immaterial. Either way, a patentee has rights that should be enforced – or do you disagree with this basic premise?

  73. IANAE February 18, 2011 11:28 am

    Either way, a patentee has rights that should be enforced – or do you disagree with this basic premise?

    That premise is a little too basic for me. It appears to preclude invalidity as a defense. I’m fine with “the owner of a valid patent has rights that should be enforced”.

    Also, we all know that “all rights should be fully enforced always” is neither tenable nor legally correct. The courts of equity were invented because legal rights were being too “enforced”, and anti-trust legislation was later invented because equitable rights got out of hand.

    Also, I know where you’re headed with this. Your next post is going to be “well, if you agree that they should be enforced, where’s my client’s injunction?” I refer you back to eBay. Enforcing an exclusive right doesn’t always mean getting an injunction. That’s actually a built-in feature of equity to keep it from getting out of hand. That feature is not unique to patent law, just new to it.

  74. Blind Dogma February 18, 2011 12:50 pm

    That feature is not unique to patent law, just new to it.

    Wrong. The legal principles were there before eBay. eBay merely reminded the CAFC that they cannot rubber stamp.

    I’m fine with “the owner of a valid patent has rights that should be enforced”.

    News to me. How do you recommend enforcement of the rights – in direct contraposition of any notion of remedy for rights violated?

  75. IANAE February 18, 2011 2:00 pm

    eBay merely reminded the CAFC that they cannot rubber stamp.

    Oh, they “reminded” them, did they? How English Common Law of you. The law has always been that way, we just hadn’t been told yet.

    That feature, in the sense of actually being applied in practice, is quite new to patent law. Which explains why people like you are suddenly so upset about it after not paying any attention to it for a long time.

    How do you recommend enforcement of the rights – in direct contraposition of any notion of remedy for rights violated?

    Contraposition? What are you talking about?

    I recommend enforcing the rights the same way every other right is enforced. With enough money to make the plaintiff whole, but no less than a reasonable royalty for those who can’t show any actual harm (which is better than you get for other rights, actually), and an injunction in cases where money is demonstrably not enough.

  76. Blind Dogma February 18, 2011 2:41 pm

    How English Common Law of you. The law has always been that way, we just hadn’t been told yet.

    You do not need to go to English Common Law for this comment – the US Supreme Court is much, much closer.

    explains why people like you are suddenly so upset about it after not paying any attention to it for a long time.

    Entirely presumptive – and entirely wrong. Do you always assume so much?

    I recommend enforcing the rights the same way every other right is enforced.

    Enforcing does not equal remedy.

    You seem to have a major mental block on this.

    Surprising, given the volumes you have posted on remedy.

    Which reminds me, why do you never seem to comment on the fundamental reason for remedy (make whole) and the special relationship between the tools of remedy and the actual rights involved in patent cases? You seem to dismiss the basics and cling to the natural proclivity of judging an injunction as “especially harsh”. Surely you realize that in the patent world, the level of “harshness” of that equiatable tool cannot be placed on common ground with the general view of harshness. This has nothing to do with treating Patent Law as special and everything to do with understanding the basics of equity.

  77. Blind Dogma February 18, 2011 2:42 pm

    …and the basics of what it means to have a patent.

    You do know those basics, correct?

  78. IANAE February 18, 2011 3:02 pm

    Enforcing does not equal remedy.

    You’re right. Sometimes it equals no remedy at all.

    why do you never seem to comment on the fundamental reason for remedy (make whole) and the special relationship between the tools of remedy and the actual rights involved in patent cases?

    I comment on it frequently, and at length. I don’t know why I never “seem” to comment on it, but I suspect the problem is on your end.

    You seem to dismiss the basics and cling to the natural proclivity of judging an injunction as “especially harsh”.

    Injunctions have always been seen as an “especially harsh” remedy. That’s why the test for them has always been that no other remedy is sufficient, and the balance of hardship must be considered. That is the “basics” of equity and injunction.

    Surely you realize that in the patent world, the level of “harshness” of that equiatable tool cannot be placed on common ground with the general view of harshness.

    Why not? Patents are perhaps the best example in the world of a clear right that can be just as clearly violated while just as clearly causing exactly no harm to the holder of the right, wherein an injunction could have severe economic consequences for the defendant while conferring exactly no economic benefit on the patentee. If equity could come up with an ideal hypothetical case for denying a permanent injunction, it would be a patent infringement action brought by a non-practicing patentee with no licensees.

    So tell me, why are patents special? Why are they so much more important than any other right a person could have? What’s this compelling reason for giving the law’s most drastic civil remedy to a party that has suffered no harm? Is it because infringement makes patentees sad?

  79. Blind Dogma February 18, 2011 4:01 pm

    Why not? Patents are perhaps the best example in the world of a clear right that can be just as clearly violated while just as clearly causing exactly no harm to the holder of the right, wherein an injunction could have severe economic consequences for the defendant while conferring exactly no economic benefit on the patentee.

    So you clearly do not understand that the right violated is the right to exclude then.

    So tell me, why are patents special?

    Apply the socratic method – figure theis one out and you will unerstand so much more than my merely telling you (which you will refuse to believe anyway).

    “<I:Why are they so much more important than any other right a person could have?” – non sequtur red herring and meaningless question.

    What’s this compelling reason for giving the law’s most drastic civil remedy to a party that has suffered no harm?” – First, you have shown that you do not understand the harm. Second, you have shown that you do not understand the first and most basic reason for remedy (hint: – it’s not money).

    Seriously, the only way you can be missing this is by trying to miss this.

  80. IANAE February 18, 2011 4:37 pm

    So you clearly do not understand that the right violated is the right to exclude then.

    I understand that very clearly.

    I also understand that it takes more than a right to get a remedy.

    Apply the socratic method – figure theis one out and you will unerstand so much more than my merely telling you (which you will refuse to believe anyway).

    Oh, you’re doing the “Socratic” thing again? Another attempt to sound clever and philosophical while refusing to contribute anything to the conversation?

    First, you have shown that you do not understand the harm.

    No, you have shown that you don’t understand that a right can be violated without there being any harm. Even though I’ve given examples of it in the past. The harm is not “my right has been violated and that makes me sad”, the harm has to be something you’ve actually lost. That’s why different people might get different remedies for the exact same violation of the exact same right. You take your victim as you find him.

    Second, you have shown that you do not understand the first and most basic reason for remedy (hint: – it’s not money).

    It’s usually money, or something that can be measured in money. If it’s something as subjective and arbitrary as “I feel bad that my right has been violated”, the remedy will properly be nominal. Remedy is for making the plaintiff whole. The right simply establishes the plaintiff’s entitlement to be made whole, but it’s still up to the court to evaluate how big a whole it has to fill. Money works great when the plaintiff has lost something of monetary value, and injunctions are typically reserved for cases where the plaintiff has lost something so valuable or so uncertain in its valuation that no amount of money can make him whole.

    If you have a patent you’re not doing anything with, and someone else is operating a factory two thousand miles away, chances are you haven’t been harmed at all, even though your right has clearly been violated. You’re already whole. You should take your reasonable royalty, and thank your lucky stars that the statute makes specific provision for an extra remedy that makes you more than whole, without requiring you to prove any harm at all.

    Seriously, the only way you can be missing this is by trying to miss this.

  81. Blind Dogma February 18, 2011 6:30 pm

    I also understand that it takes more than a right to get a remedy.

    Nice – but you have applied your usual spin and are answering something not put to you. Did I ask what I must do to get a remedy? – No. So, let’s try again and actually answer what was put to you:

    Hence the question: “How do you recommend enforcement of the rights – in direct contraposition of any notion of remedy for rights violated?” and the phrase: “Enforcing does not equal remedy.

    Try again – this time without the spin.

    No, you have shown that you don’t understand that a right can be violated without there being any harm

    Poor logic – No, I have shown that I refuse to accept your version that the violation of a patent right held by an NPE means that no harm has been done. I hold that harm has been done. Harm, as I am sure you are well aware of, doesn’t always mean harm to financial interests. Although even in a case with an NPE, financial interests can be harmed given that the holder of the property of the right to exclude may freely choose to exclude in order to drive the bargain that he seeks. The other side is always free to say no, to be creative himself and invent around (yes, this is one aspect of promote that you have NEVER acknowledged – funny that), or is free to simply walk away. Plainly put – your tendency to slip into a paternalistic overseer of other peoples rights has no legal justification and is rather trite. As anyone can see, the right/harm point evidences quite a different position than the one you wish to spin. – You just cannot help yourself from spinning because the plain truth is that your position is untenable in law.

    You’re already whole.
    No – go back and review what the actual right being violated is (hint: it is not a “making” or “doing”). Is someone whose right is being violated whole? You really need to stop stopping at the money portion of remedy – it keeps tripping you up. Ignoring what the actual patent right is too doesn’t not help you make a legal case here either. Are you not tired of such simple tricks?

    But let’s play your game for a moment, and jump into your briar patch of “remedy” – “It’s usually money” – care to explore this statement of yours a bit more – like when is it not money?

    And if you want to discuss “refusing to contribute anything” – you would be the master at that.
    Seriously, the only way you can be missing this is by trying to miss this.

    That repeating of my comments does not work so well for you – you need to actually make your case first, and you haven’t – not by a long shot.

  82. Stan E. Delo February 19, 2011 12:52 am

    I certainly hope I don’t ever have to see you in court some day sitting at someone else’s table! I am reminded of Alva C. Long here in Seattle who came into a civil court to defend a client who was in big trouble it seemed, and you could see the judge literally cringe when he saw him walk into room. Apparently it was meant to be a *surprise* for the judge and the prosecuter.

    Stan~

  83. Michael Mason February 21, 2011 9:00 am

    Of bees and bonnets! How can you wholeheartedly support a presumption of validity when there is dwindling faith in the quality of patents being issued and when the PTO is starved of resources to improve the situation? That is the problem that has to be solved before we can return to a desirable presumption.
    Gene Quinn and I have different, if complementary, interests. He wants you to believe that “patent rights are virtually a prerequisite to obtaining funding” for start-ups and small businesses, whereas here at Research Disclosure we go along with strategists like Jackie Hutter and Bob Weber who calculate that about 9 out of 10 US patents are worthless – that is to say, they will not cover their costs of filing and maintenance. What SMEs need in order to raise funds and succeed is often just a guaranteed freedom to operate which a defensive disclosure gives you. You can buy yourself freedom to operate in 24 hours with a simple two hundred word disclosure for $120, instead of up to 3 years for patent with 50 pages of technical documentation at a cost of $5,000? $20,000? Who’s counting?
    If we could halt ‘virility patenting’ and persuade innovators to assess more closely the actual economic benefits of a patent, the number of applications would nosedive, the quality of USPTO assessments would rise and we could return to a welcome presumption of validity with nobody having much to complain about.

  84. Gene Quinn February 21, 2011 10:16 am

    Michael Mason-

    Patents are essentially a prerequisite to obtaining funding, all of the data is clear on that point. I will observer that you offer nothing to rebut that, although you seem to challenge the validity of my assertions. I provide facts, you provide conclusions. If you care to attempt to rebut please deal with facts.

    Second, you say: “hat SMEs need in order to raise funds and succeed is often just a guaranteed freedom to operate…”

    That statement shows how extremely naive you really are on the topic. Guaranteed freedom to operate? First, does a “guaranteed freedom to operate” provide a competitive advantage? Of course not. Second, do investors want a competitive advantage? Of course they do. Third, there is no such thing as a guaranteed freedom to operate. For better or for worse anyone can sue anyone else in the US with or without any basis to do so. You see, that is a growing problem in the patent space; namely the lack of due diligence prior to filing a patent infringement lawsuit.

    Look, you can either have patents, obtain whatever competitive advantage that comes from your innovation and patent quality or you can be a target that has virtually no chance at attracting investors.

    Good luck finding that guarantee you are looking for.

    -Gene

  85. Blind Dogma February 21, 2011 10:58 am

    I am curious as to the entity that is willing to “guarantee” and exactly what is covered by the “guarantee.” Without knowing more, my bet would be that it would be a money-back guaranteee, or in other words, the guarantor would be on the hook for exactly how much the SME paid for the guarantee.

    Any court finding over and above that would be on the heads of the SME.

    As Gene indicates – good luck with that.

  86. Michael Mason February 21, 2011 11:22 am

    Oh dear, Gene. There is a bigger world outside.
    I got substantial investment when I launched my first newspaper. I did not have to produce a single patent alongside my business plan. If we are talking about only those businesses depending on innovation, then by disclosing enabling details of my invention in due form I preclude anyone from patenting my invention subsequently – myself included. Note that I am talking about my invention. If my agents have failed to search properly and have overlooked an existing patent on my invention then of course the patent takes precedence. But if I am the original inventor and disclose, nobody, but nobody can trump my freedom to operate. I guarantee ya!

  87. Ron Hilton February 21, 2011 11:27 am

    Michael is right that the patent system is broken in many respects, but I agree that his prescription for it is highly flawed. Because the patent right is (quite necessarily) an exclusive one, the best defense is a good offense. Successful players are those who out-innovate and out-patent their competitors, which also happens to serve the best interests of society overall. However, there are cases when patents can be misused to the detriment of society (trolls, illegal monopolists). Improving the quality of patents and shoring up the antitrust counterpoint to patent abuse is what is needed to make the whole system work in practice more the way it is supposed to in theory.

  88. Michael Mason February 21, 2011 11:31 am

    @blindogma – see above. The guarantee I speak of is that of the operation of the law. By disclosing enabling details of my invention I make it prior art. Good patents cannot be granted if there is established prior art – whether it be patent or non-patent prior art. Of course, Gene can take me to court if he wants to, but if his client’s ‘patent’ succeeded my disclosure and the judge has not been paid off, my disclosure, even though not a patent itself, will trump his client’s badly granted patent.

  89. Ron Hilton February 21, 2011 11:34 am

    Michael, it isn’t the freedom to practice your own invention that is the hard part. It is the need to practice someone else’s invention that will block you, even (and most especially) if your invention is an improvement upon earlier patented inventions. The only real solution is to have IP of your own to use as bargaining leverage. It’s an ever-escalating IP arms race that, if it works properly, becomes a virtuous cycle to the benefit of all. Only when actual conflicts erupt (trolls, illegal monopolies) do other measures need to be taken (antitrust) to get things back on track.

  90. Michael Mason February 21, 2011 12:38 pm

    I cannot have made my underlying thesis clear. I am talking about how you successfully launch and grow a business, and how too many are tempted to waste money on patents they do not need.

    Let us agree that the preponderance of new businesses do not rely on technical innovation. As a publisher, my business grows by my identifying new markets, finding groups of people with a common interest who are not yet served by existing publications. I might open a funeral parlour offering better service at lower prices, or a general store in a town that has none after the previous storekeeper drank himself to death. I could take an existing domestic business and open it overseas.

    Only a percentage of businesses are born of an inventor or an investor appreciating the commercial potential of the invention. There is then a further evaluation which needs to take place and I can do no better than quote Jackie Hutter who said three conditions need to exist before the invention is deemed commercially patentable:

    1) The patent would directly or indirectly protect a product or technology that is being sold in the market today;
    2) The patent would cover a product or technology where there is or likely will be viable competition in the marketplace such that a patent is needed to legally restrain competition; and
    3) The patent owner would be ready, willing and able to bring a patent infringement suit against an infringer or it is likely that your competitor believes that it will possibly do so.

    It is at this point that the system is breaking down and that an unrealistic number of inventions are being deemed patentable. Too often, quite unnecessary patent costs are accepted by businesses who could as well have disclosed (thus preventing someone from coming along later, patenting their idea and then demanding licence fees).

    I believe that Judge Paul Michael put his finger on it when he said that the patent reform Bill was all very well, but did not get to the heart of the problem which lay in long delays at the USPTO and the lack of resources to recover the situation. His solution was more resources. I would add only that a reduction in the workload of the USPTO by reducing the number of “worthless” patents applied for would help recovery.

    Remember his stark statement: “In a recent study, the United States came in dead last of the 40 top technology countries in the world in strengthening its innovation infrastructure over the last decade.”

  91. Gene Quinn February 21, 2011 1:15 pm

    Michael Mason-

    You say: “I got substantial investment when I launched my first newspaper. I did not have to produce a single patent alongside my business plan.”

    Alright. I see how you want to play. Why must you compare apples and elephants? Are you going to try and pretend that a newpaper is that same as a high-tech start-up company based on innovation? Really. Please try and keep your comments real.

    Sure, go right ahead and disclose your innovations so others cannot patent them and so you cannot patent them. Hopefully you won’t have spent ANY money developing those innovations because they will be copied and you will not have any opportunity to recoup your R&D expenditures given the market will settle at the lower rate that can be charged by the free-riders who did not have to expend R&D funds as you did.

    Thanks for the guarantee. Now I will guarantee that your approach will put you out of business because you will not be able to compete with the free-riders. But go right ahead and attempt to prove me wrong. Your naive approach to innovation will benefit your competitors and the rest of us who won’t have to pay a pro-rata share of your R&D costs.

    -Gene

  92. Gene Quinn February 21, 2011 1:16 pm

    Michael Mason says: “Of course, Gene can take me to court if he wants to…”

    Why would I want to take you to court? I would just rip off your innovation and charge less since I didn’t have to pay to develop it.

    -Gene

  93. Bobby February 21, 2011 1:28 pm

    Ron,
    “The only real solution is to have IP of your own to use as bargaining leverage.”
    Isn’t the simpler solution to just raise the bar for patents? If what the innovative companies need is the freedom to be able to use someone else’s (likely low quality but difficult to avoid) patents, then the solution would quite clearly be having less patents. Having leverage that neutralizes a patent is, practically speaking, the same position as neither party having the patent, which means less money is spent by both parties and it might even help a bit with the backlog.

    Gene,
    If he discloses the innovation when said innovation comes on to the market, then he at least has a first mover’s advantage. Let’s say that even with complete knowledge of how Mike’s invention is manufactured, competitors can’t get commercial production of his product to the market for 6 months. If he can recoup the R&D costs within those 6 months, then it’s still a pretty good investment which places him at a competitive advantage, and takes less resources than getting a patent would. Generally speaking, this is going to be better for minor improvements requiring smaller investments, but a lot of small advances can end up resulting in more progress than a few big ones.

  94. Blind Dogma February 21, 2011 1:29 pm

    As a publisher, my business grows by my identifying new markets, finding groups of people with a common interest who are not yet served by existing publications. I might open a funeral parlour offering better service at lower prices, or a general store in a town that has none after the previous storekeeper drank himself to death. I could take an existing domestic business and open it overseas.

    I will bet that there are any number of patents on items included in the description of “your business.”

    I actually agree with Ron on this – without the leverage of patents to counteract what others have already patented, no matter how good your new enabling details are – you will not be in business. Anything you build upon the shoulders of others cannot be taken fro granted – as you have done here.

    So in other words: “Let us agree that the preponderance of new businesses do not rely on technical innovation.” would be a resounding NO – we will not agree (not without a thorough check – which has problems of its own, mind you).

    The blindness that you partake in is that you think that anything you do, you do from a complete blank slate. Real business simply does not work that way. Even if you think that you alone came up with the idea – even if you indeed did come up with the idea yourself, someone else may have already invented that and patented it. In such cases, your enabling disclosure means nothing.

    In the chance (since I will give you the benefit of the doubt that you are indeed a bright person) that there is a portion that is indeed useful, novel and non-obvious, your disclosure may prevent downstream people from using that facet or attempting to patent that facet and turn around and go after you for license fees. The big HOWEVER, though, is that your disclosure – on its own – has ZERO ability for you to actually do anything if you are depending on other facets that are captured by others’ patents.

    You are making one of the cardinal sins of patent mistakes. You are misunderstanding what the patent right is. The patent right is not a right to “do” or “make” – it is a right to exclude. Understanding this difference is absolutely critical.

    His solution was more resources” – NOT his only solution mind you.

    I would add only that a reduction in the workload of the USPTO by reducing the number of “worthless” patents applied for would help recovery.

    More paternalistic and subjective views of determining that others’ work are “worthless” and should be gotten rid of. Here is another cardinal sin of patent mistakes. The patent office “promotes” by gethering “more” patent applications and “more” patent applications are good. Patent applications do not need to be hugely groundbreaking, Nobel Prize efforts. This type of thinking (the Douglas view – the Flash of Genius view) was EXPRESSLY negated by Congress when they wrote the 1952 Act. Breadth of ideas captured and given to the benefit of all mankinid (after the very limited patent term) is the proper viewpoint to have – NOT only home run inventions. Your viewpoint is not new – it is merely improper and illegal.

    You also grossly misunderstand the Hutter principles with actual legal principles of patentability. Nowhere in the Patent Law is there any guarantee of commercial success. So while Hutter may be adding some valuable thoughts in order to obtain commercial success, his views are outside of the actual law. You have jumped without looking, spilling your glass of Kool Aid. But do not worry, I have more to sell you.

  95. Blind Dogma February 21, 2011 1:38 pm

    Bobby,

    If what the innovative companies need is the freedom to be able to use someone else’s (likely low quality but difficult to avoid) patents, then the solution would quite clearly be having less patents.

    That’s not innovation – that’s free riding — the opposite of innovation. If you took the time to unerstand patent law, you would see the inanity of your position. Eyes clenched tight, you march on.

    This penchant for copying others without recompense to their work that you so eagerly advocate once again provides an invitation to question the ethics of your position. Exactly why is it so laudable to steal the ideas of others (and I use “steal” deliberately) without giving them their due?

    As I recall, each time that subject is brought up, you quite quickly decline.

  96. Bobby February 21, 2011 2:13 pm

    “That’s not innovation – that’s free riding — the opposite of innovation.”
    You can innovate and infringe patents at the same time. By specifically speaking of ‘innovative companies,’ I am suggesting that this would be the scenario in question. If a company gets a patent for defensive purposes (leverage for using other patents), then we are assuming they don’t intend to use it offensively (excluding others, bringing infringement suits). If they didn’t need to defend themselves, then they wouldn’t need the patent, and by not trying to get the patent, would save money, which is going to be favorable for this innovative company. If the situation on what ideas they can and cannot use is effectively the same in both scenarios, why is it better for the company to waste money?

    “Exactly why is it so laudable to steal the ideas of others (and I use “steal” deliberately) without giving them their due?”
    You seem to think that because I don’t hold that using other’s ideas is inherently bad, then I hold that it is inherently good. In most cases, it’s probably more or less neutral and completely accidental. Now, if someone is innovating in a way that is built on someone else’s patent, then what is good is their innovation. Of course, merely copying can be very good as well. Generic pharmaceutical companies and reprinters of public domain works are merely copyists, but they make something useful widely available at a cheap price. You and I both copied others in learning the English language, and have probably contributed nothing to the vocabulary or grammar of that language, but both of us being capable of speaking English is likely much more productive than if we had invented entirely new languages ourselves.

    As for the deliberate misuse of steal, why exactly do you insist on using a technically and legally inaccurate term? Don’t you always go on about how I don’t know the law while generally not pointing out what part of the law I don’t know or understand?

  97. Stan E. Delo February 21, 2011 4:49 pm

    Bobby-

    Instead of *borrowing* the granted patent rights, and pretending that you don’t know of them I suppose, what would be so onerous about just paying them a reasonable royalty for the years and many thousands of dollars they have invested in the develop of the invention? If you can invent a better way to do whatever, you can always file your own patent application to make their earlier invention obsolete. Until your newer better invention has been granted a *valid* patent by whichever patent office seems appropriate, you will have no rights to practice the invention without the inventors or patent owners permission, or you will be infringing their patent by legal definition here in the US. Ignorance of the law is no excuse in nearly every area of the law, except perhaps in patent law.

    I have asked this 2 or 3 times and have not gotten any answers at all as far as I been able to discern, and I repeat:

    Why are you so interested in giving MY patent rights away for free? For the betterment of society or some other abstract reason? No matter what you think, it is a well documented fact that innovative small businesses are responsible for creating about 60% of all new American jobs. How are they funded? Usually with patents for the exclusivity because they are normally underfunded in the beginning stages, and having a patent or one pending is a very useful tool to convince others to invest in their new endeavor. Arm-waving grandiose schemes won’t get it, as in the Angel investors are not going to get too excited about your presentation if they don’t think they have some sort of reasonable expectation of exclusivity and some assurance that they might be able to get their investment back before the company craters within a year or two. Venture capital is even tougher, as they tend to go for the longer haul, and are more expensive of ROI with their longer term financial arrangements.

    Stan~

  98. Bobby February 21, 2011 5:15 pm

    Stan,
    You don’t understand the scenario being discussed. Let me point it out explicitly:

    Innovative Startup, LLC is agreat innovator. They get some patents for their innovation, but the only thing these patents are for is not getting litigated to shreds by Dinosaur Incumbent, Inc., and while they can use the Dinosaur patents, Dinosaur can use their patents too. Both Dinosaur and Innovative spent a good amount of money acquiring the relevant patents and on negotiation of the cross-licensing deal, which quite likely results in Innovative still paying some royalties.

    Here is the proposed alternative:

    Innovative Startup, LLC has a great innovation. They don’t get a patent, and instead rely upon the first mover’s advantage and perhaps as much of a trade secret as they can maintain. They know the methods used by Dinosaur Incumbent, Inc. (which were too mundane and incremental to get patents for under a more appropriate policy), and DInosaur eventually figures out their methods. Thus we have both parties using techniques developed by both parties like in the first scenario, but neither party spent money on pointless patents or licensing agreements.

    Why is the alternative not superior to the status quo? If a defensive patent is what the angel investors and VCs care about, than why not just remove the need for so much defense?

  99. Stan E. Delo February 21, 2011 5:33 pm

    Bobby writes in small part:

    “Why is the alternative not superior to the status quo? If a defensive patent is what the angel investors and VCs care about, than why not just remove the need for so much defense?”

    Really Bobby? Just wave your Magic wand and all those pesky patent rights will just go away because YOU and a very few others want them to? Pretty tough sell I would think, as there are probably 2 million or more active patents here in the US alone. Don’t tell it to me, tell it to all the other millions of inventors that would ostensibly seem to have valid and granted patent rights. Not sure where you come from, but here in the western US at least, the Maverick factor is still alive and well.

    Stan~

  100. Bobby February 21, 2011 5:57 pm

    No, it’s not going to happen magically and probably not overnight either. But, the courts having a lower standard for invalidation may be a step in that direction and we could try and change our patent policies in a manner that would cut the need for defensive patents, letting startups actually save some money. If we can, and that system is better, why not shoot for that goal?

  101. step back February 22, 2011 4:50 pm

    They don’t get a patent, and instead rely upon the first mover’s advantage and perhaps as much of a trade secret as they can maintain.

    Dear Misguided Bobby,

    “First mover’s advantage” is an urban legend.

    The cemeteries are full of the corporate corpses of so called, first movers.
    Does the name, Netscape mean anything to you?
    How about Wright Brothers’ Aircraft Corporation?
    How about the Kearn and Son Intermittent Windshield Wipe Corp.?

  102. Stan E. Delo February 22, 2011 5:20 pm

    Step-

    This sorta cuts the cake for me as regards listening at all. Suggesting that I might be able to protect my inventions by using a Trade Secret approach seems frankly to me to be naive at the best, bordering on cruel and hard-hearted on the other side of the coin. Could it perhaps be said that nobody especially cares very much about what the recipe for Coca-Cola happens to be?

    Stan~

  103. Bobby February 22, 2011 6:16 pm

    Step Back,
    No, it’s quite real, and it’s the only way to recoup a change too small for a patent. You just seem to think first mover’s advantage means that all of your competitors are thrown into an abyss and that you, when it’s actually just some advantages that the first important party on the market tends to have. It’s not a guarantee, but neither is a patent, as is often stated here. In fact, I’m pretty sure the Wright Brothers and Kearn both used patents, so you picked rather some poor examples. It’s also worth noting that you have to keep advancing if you want to stay alive, and that’s how it should be. Kearn and the Wrights don’t seem to have done much after their initial breakthroughs, so why would they still be around today? Finally, whether you use patents, trade secrets, or animal sacrifices, small companies are going to tend to fail even when they are innovative.

    Stan,
    The recipe for Coca-Cola is considered quite valuable, and I’ve often heard of it referred to as the most valuable trade secret in the world. Now, whether or not you could make a profit with a trade secret or not is not clear, and not really that important. Whether you opt for patents or trade secrets, the odds are stacked against you as a small company. What matters is which system works better. If the reality is that for innovative startups, all of your big competitors are going to be using your invention anyway because you are forced into cross-licensing agreements, or you are stuck in a very specific niche market because there are enough patents held by large parties to prevent entry into the market, then it’s quite likely that we’d be better off with at least fewer patents.

  104. Stan E. Delo February 22, 2011 6:36 pm

    BD and Step-
    Sorta shears the edges off of their arguments very nicely, dontcha think? Double hand springs and a full-blown Circus for our consideration. i of course canna agree, and still have not gotten an answer to my question about Why some here are so desirous of giving MY patent rights away for free? Somehow that question seems to always be ignored for whatever reasons, which perhaps calls the motives of whomever into question. NOT legal, but perhaps a useful barometer of sorts.

    Stan~

  105. Bobby February 22, 2011 7:24 pm

    Stan,
    First of all, what I’m advocating would be more appropriately not giving you those rights in the first place, and at the extreme, to stop giving you those rights. Secondly, I’m not wanting this because I want to rip you off or because I want you to be harmed. I want patents to at least be scaled back because the evidence I’ve seen suggests that patents are overall harmful to society and progress, which is the opposite of the intent of these systems.
    I try not to be venomous, but perhaps that’s what’s need to get through to you. To make a horribly inappropriate analogy that stirs up emotions like you have tended to do, consider the position that slave owners once had. Anything anti-slavery was an attack on their ‘property rights,’ and binding people is actually easier to do than binding publicly known ideas. A slave owner might ask abolitionists why they are so desirous of giving their property away for free, but the answer is that the people should have never been property in the first place.

    Now, don’t get me wrong, patents are not anywhere near as bad as slavery, and comparing the two is, as I said, horribly inappropriate, but I’m sure you can acknowledge that people should have never have been property, and perhaps be able to jump from there to the notion of how one may find it inappropriate for ideas that exist outside of one’s own mind to be property.

  106. Stan E. Delo February 22, 2011 8:23 pm

    Bobby-

    Still no attempt at an answer for the sixth time or so? Why are you so interested in Giving MY patent rights away for free? I object, and point of order. Miillions would disagree with you.

    Stan~

  107. Bobby February 22, 2011 9:51 pm

    Stan,
    In case I wasn’t clear, I contend that giving you and others those patent rights in the first place was not a good idea. The WHY is because it appears that the public is harmed, not helped, by patents, at least in their current iteration.

  108. Ron Hilton February 22, 2011 10:33 pm

    The patent system may be broken, but killing the patient isn’t my idea of a cure. If the whole concept of IP is wrong, then so are copyrights and trademarks. You can’t argue for the elimination of one and not the other.

  109. Bobby February 23, 2011 1:44 am

    “If the whole concept of IP is wrong, then so are copyrights and trademarks.”
    Not inherently. The patent system is broken because it doesn’t work in achieving it’s goal. Whether patents, copyright, and trademarks work in achieving their individual goals is going to be a separate factor for each, because the goals and methods differ. One function of the trademark system is consumer protection, and while trademarks are filling the role of identification, they may be achieving something that outweighs it’s cost. Copyright law in it’s current form is horribly broken, there is evidence that it never worked either, and the fundamental assumptions from the printing press we used when writing copyright laws don’t mesh well with the technology we have today.

  110. step back February 23, 2011 5:32 am

    “[T]he Wright Brothers and Kearn both used patents, so you picked rather some poor examples”

    Bobby,

    ROFLMAO re your logic.

    No. I picked those examples precisely because they did have patents and even with that in their ammo bags, they got their behinds kicked in the marketplace despite your fancy pants theory about “first mover advantage”.

    There may be many examples of “first movers” who did not have patents and, as a result, you never even heard of them because there is not even any court records of their battles with the third, fourth and fifth movers who wiped the flattened corpses of these pioneering first movers across the pavement much as an elephant might wipe his foot clean after having stepped on a mouse.

  111. Michael Mason February 23, 2011 5:39 am

    I promised myself to button it and not come back in, but honestly…
    The thesis is NOT that patents confer no benefits but that patents only confer benefits when the invention looks more or less likely to recover application, filing and maintenance costs. Nobody is objecting to having a system of patenting. The problem is too many inventors thinking that it is worth patenting an inconsequential invention that will not recover its patent costs.
    If I disclose an invention that I am confident is not significant enough to recoup its costs then someone who later comes up with the idea cannot patent it and stop me using the invention in my business, or charge me fees for doing so. It’s exactly the same as buying any other form of insurance but a tiny percentage of patenting costs. Gene asks me what competitive advantage I gain by disclosing. He may have worked out by now that $50,000 of working capital remains in my pocket instead of his.
    He repeatedly calls me ‘naive’ (not sure why he needs to get personal). If I am wet behind the ears so be it. But what about the people who actually use Research Disclosure to disclose their inventions rather than patent them: Boeing, Siemens, Hewlett Packard, Ericsson, General Motors, US Steel, Astrozeneca, Philips, Roche, Tube Investments, and on and endlessly on. And now we are getting disclosures from subsidiaries in India and China. In the more than fifty years we have been publishing, more than 90% of the world’s highest valued companies have used us.
    There is a new and growing profession who style themselves “IP strategists”. They are mostly patent attorneys, but with added commercial nous. Their first reaction is not to grab for a USPTO form but to advise clients how to manage their IP portfolio. Call them naive if you like, but with patent system crumbling round the edges (and perhaps nowhere more so than in the US), it’s worth lending them an ear.

  112. Michael Mason February 23, 2011 5:51 am

    @step back – it is not decisive to argue that many first users have failed. “First mover” is merely one of a number of competitive advantages a new company might have going for it, not a guarantee against competition.
    But “first mover” can give you material advantages. In 1960 Research Disclosure was a first mover. It compiled a substantial library of non-patent prior art so that when the Patent Cooperation Treaty came into effect in 1978, we were named as having “Minimum Documentaton” status along with learned journals – that is, PCT assessors were expected to use us in their searches. No other disclosure service since has been awarded Minimum Documentation. This means that inventors disclose with us, confident that their disclosure will be picked up in prior art searches and save them having to go to court to have a bad patent struck down. Just an anecdaote I know but ‘first mover’ can confer material advantages.

  113. Ron Hilton February 23, 2011 10:36 am

    Michael, I went to the RD website and have some questions. Does RD simply publish whatever the client submits, or is there any kind of value-added service provided by RD to enhance its effectiveness as prior art? If not, $120/page seems rather costly. Why not just submit the same document as a SIR or a patent application to the USPTO and then abandon it after publication? Then it would be right there in the search database where an Examiner will likely find it. Do you have any statistics on the effectiveness of RD publications? How often they are cited by Examiners? How often they have led to successful rejections?

    In any case, a defensive publication does not provide the same commercial leverage as actual IP. For any kind of innovative enterprise that is pushing the state of the art, the risk of infringing a competitor’s patent is very real and a defensive publication provides no protection against that. I would agree that a low-tech enterprise (like a newspaper) has little need for IP protection. But then they would also have little need for defensive publication of their presumably non-existent innovations.

  114. Bobby February 23, 2011 12:50 pm

    Step Back,
    Patents involve disclosure, so at least some of the trade secret advantages that a first mover would normally have are gone. As I said, it’s a first mover’s advantage, not a first mover’s guarantee, and it’s far from the only factor. Also, the first mover’s advantage is primarily about recouping your initial investment, not being a permanent fixture on the market. Even once dominant companies tend to eventually fail, so you’ve picked a rather poor benchmark. I’ve already said that small companies are going to fail most of the time regardless of the protection given. If I had to guess in a rather nonscientific way, I’d say that no matter what policy you have in place, failure rates of even innovative companies are going to be above 90% within the first few years.

    As a counter-example, Coca-Cola is generally considered the first mover in the cola market, and still dominates the market over a century after entry. They did have a design patent for the bottle, but that has nothing to do with the cola itself. Of course, the Coca-Cola company has not simply coasted on their biggest success, they have actively branched out into many other beverages and have established a very powerful brand.

  115. Blind Dogma February 23, 2011 1:57 pm

    Michael,

    Not to be too blunt about it, but

    The thesis is NOT that patents confer no benefits but that patents only confer benefits when the invention looks more or less likely to recover application, filing and maintenance costs. Nobody is objecting to having a system of patenting

    is completely off the mark.

    Bobby continues to build castles of (pipe)dreams on the sands of no legal standing. They are dangerous to any who enter (and to any who may be within the perimeter of crashing stones). His points are so off, that it is difficult to pick a starting point in trying to correct him (not that he would listen anyway – he has had so much Kool Aid, it is spilling from his ears).

    Indeed, there is a great diffference between succeeding in business (as in “making” of “doing”) and the concept of patent rights (which critically are not about “making” or “doing”).

  116. Stan E. Delo February 23, 2011 2:23 pm

    Bobby-

    So just out of curiosity, since you seem to like Trade Secrets so much, what percentage of what is termed IP today do you think it would even be Possible to be kept as a Trade Secret? All I can think of is recipes (and not simple ones) and process types of innovations, and software. I would guess that 20% or less would be able to actually retain a Trade Secret for very long, so what happens to all the other 80% of inventors that can’t get useful patent rights? My most recent project works perfectly, which took several years and thousands to get to, but it would be impossible to keep as a trade secret, because they could just buy one, and take it apart to see how it works.

    BD-
    That is why I have been stunned into silence quite a number of times here, when I realize just how far out some have gotten legally especially, and the understanding that they actually really believe all this stuff, so no amount of reason will probably ever get through to them. It’s actually pretty funny in a way, as Step alludes to, if it weren’t quite so tragic that Bobby for instance, would apparently like to take the patent rights away from millions of inventors if he possible could.

    Stan~

  117. Bobby February 23, 2011 3:06 pm

    Stan,
    It’s very hard to get numbers on that because trade secrets often don’t fall perfectly within known and unknown. Take Coca-cola for example. We can get very close to the formula of Coca-Cola, perhaps to an extent that double-blind taste tests can’t tell the difference, but we still don’t know the exact formula. So, I see it as reasonable to say that the Coca-Cola recipe is a trade secret today and that it isn’t.

    You also seem to be looking at things the wrong way. What matters with a trade secret is your likelihood of getting a return on investment, not being able to keep control of market indefinitely. From the way you speak, your invention is mechanical, which is where trade secrets are generally going to be at their weakest. The best solution on your part absent a patent system may be to flood the market with your product, although there are many circumstances that might change your best option. If you can recoup your expenses in the first run or two, before your competitors can get a commercial run onto the market, then you’ve still made a profit, and you are actually at an advantage for having innovated. Keep in mind, I (non-scientifically) put the odds of success using ANY METHOD below 10%. Even under the best circumstances, failure is going to be the norm and success the exception.

    As for understandings of the law, this is not a legal issue, this specific conversation covers an economic issue. Economists are who you should be listening to, not lawyers, because the expertise of lawyers is what the law is, not what the given evidence says the law should be. That may be why BD is confused.

  118. Stan E. Delo February 23, 2011 3:21 pm

    I rest my case, Your Honor.

    Stan~

  119. Ron Hilton February 23, 2011 3:39 pm

    Software can be reverse-engineered too. Just look how quickly “open-source” clones of proprietary software spring up. That’s one reason why the open source community is so adamantly against software patents.

  120. Bobby February 23, 2011 4:03 pm

    Ron,
    I think most of the concern is a lack of protection for independent development and interoperability. Proprietary clones of proprietary software and FOSS pop up quickly as well, as do FOSS clones of FOSS. There are many cases in which companies use FOSS in a manner that’s in violation of the copyright license, to an extent that I’ve heard that the SFLC finds at least one GPL/LGPL violation a day. Developers of x264, a FOSS h.264 encoder, found that a technique they had pioneered was actually included in a patent application filed two months later. And of course, even billion dollar software companies, who can afford to do comprehensive searches, find themselves at the receiving ends of infringement lawsuits, suggesting that it’s not practical to operate in the software field without accidentally infringing patents.

  121. Blind Dogma February 23, 2011 4:34 pm

    Breathtaking:

    As for understandings of the law, this is not a legal issue

    Seriously Bobby? Understanding of the law is not a legal isue? You do realize that you are on a legal forum, do you not? You do realize that patent law is a form of law, do you not? Your desire to place this little imagination world of yours only in the realm of economics fails miserably, because at the end of the day, you have to rejoin the real world where even “economics” must obey law.

    And make no mistake – I am not in the least confused. Point by point I have dismantled anything that you half-intelligibly offered, from your farm policy comments to your general non-understanding of actual business.

    You have shirked every discussion of ethics, misrepresented what law is (and what law should be) and quite frankly, so glorified yourself in your ignorance that the only reason I can think of that Gene has not banned your comments is because no sane person would mistake what you say as anything even remotely legal. Your continued ignorance of such basics as Quid Pro Quo and the Patent Right simply cannot square with any derived other world ivory tower version of “reality” you wish to foist on anybody.

    Actually, there is one other reason I can thiink of why Gene does not ban you. Your dialogue is so awful, that you actually make the case for patents time and again without realizing it. Other anti-software patent people must be boiling mad with your inane attempts at discussing the legal subject of patents.

  122. Stan E. Delo February 23, 2011 4:44 pm

    A very good educational tool for perhaps thousands. The Other IT folks might be a bit miffed that some Maverick has goofed their message so badly.

    Stan`

  123. Bobby February 23, 2011 5:15 pm

    BD,
    You misunderstand what I say what again, perhaps because you want to make an example of me and anyone else whose views aren’t in line with your dogma. I say that my degree of understanding the law is not relevant here, because this is an economic discussion. That’s not to say I don’t understand the law, but rather that for an economic issue, what matters is the results. In my previous post, the “this” that is not a legal issue refers to whether the first mover’s advantage and trade secrets or patents do a better job of incentivizing innovation and promoting progress. That is an economic issue, not a legal one.

  124. Blind Dogma February 23, 2011 11:17 pm

    Bobby,

    In the real world, where most of us live, the “economics”, the very notion of what matters, the results, are all very much affected by law.

    Only in your (pipe)dream world can you disband with the law, because the law does not fit your agenda.

    And you say I have a dogma? You might try understanding what that word entails – your blindness is especially acute.

  125. Bobby February 23, 2011 11:41 pm

    BD,
    I didn’t say that the law doesn’t affect the results. It has to, because patents only exist in statute. However, whether patents in their current form promote or retard progress is something to ask an economist, not a lawyer, because that is an economic issue.

    We actually can change the law in the real world, and we have done it many, many times. If the effects of patent law are negative or harmful, which the evidence I’ve seen suggests, then changing patent law to something that gets better results is a good idea.

  126. Michael Mason February 24, 2011 6:01 am

    @ 114. Ron Hilton
    As to content, Ron, yes Research Disclosure publishes precisely what the client submits to us.

    Added value? In form, we edit disclosures to be searchable. Our Minimum Documentation status requires examiners to search us, but our database is also incorporated into search tools such as DWPI and esp@cenet. Think of it as advertising in the New York Times rather than the Santo Domingo Bugle. We also allow disclosers to publish anonymously if they do not want to reveal the lines of research they are pursuing.

    We also PRINT disclosures in full each month in a journal distributed round the world, to every patent office and to leading public and university libraries. Why? Because many courts like the European ones, do not accept online publicatiom as proof of date without further substantiating (usually printed) evidence. [See Konami: T 1134/06 Boards of Appeal of the European Patent Office which provides guidance as to how to cast doubt on an online disclosure]. Come litigation, we furnish courts with affidavits and any other documentation they require to prove fact and date of publication.

    Costly? You are thinking patents here –ten, fifty or a hundred page monsters. The typical disclosure runs to one (or possibly two) pages, often prepared by the R&D department itself without need of counsel. So Research Disclosure is cheaper than SIR or a USPTO patent application. (You want to encourage MORE abandoned applications to the USPTO? I thought they couldn’t cope with present volumes.)

    Effectiveness? A slippery one. Is a patent effective if it is never infringed? Our crude barometer is searching patent applications for citations. Citations were low in the 20th century when we were only a printed journal searched mainly by examiners but rose when we went online. In the USPTO alone there are some 20,000 citations of “Research Disclosure”. Since applicants prepare citations, they use many abbreviations of our title not counted here. The next largest disclosure service has been cited 420 times…

    And you’re wrong in thinking disclosures can have no commercial leverage! Take this common strategy. The Got-Rich-Quick Corp takes out a core patent. It develops accessory inventions all relying on the core patent. It could patent these at £20,000 a throw, or it can simply disclose them, safe in the knowledge that they are inoperable without access to the core patent.

    These are mysteries not every patent attorney will explain to you. Why would they?

  127. Blind Dogma February 24, 2011 7:35 am

    Our crude barometer is searching patent applications for citations.

    Michael, that’s really crude. Wait until the change to mere preponderance and watch those citations blossom.

    Bobby – your post facto “treatment” of the law in order to patch in to your dogma has been shown to be utterly baseless. You have shown a complete disregard for what patent law actually is. You have consistently denied what Quid Pro Quo really means and what the Patent Right really entails. You have consistently denied the value promoted by the Keep Out zone (forcing new creativity with new solutions) – which destroys your argument about patents retarding progress. You have consistently, and merely stated your dogma that patents are bad according to what you have “seen”.

    I have consistently asked you to open your eyes so that you can see what the law actually is. You steadfastly refuse. You “see” only that which you want to see. You eagerly quote Jefferson on the negatives, but refuse to even acknowledge the “liberal encouragement” quote by Jefferson.

    Changing the law for cause should not be confused with changing the law for “Cause”. Especially when the “Cause”, the dogma, is so blindly adhered to and so ignores the very legal principles that must be understood as they are the foundation of the law begin sought to be changed. Passion and blind adherence to dogma does not make up for (purposeful) lack of understanding.

    And make no mistake as to who is misunderstanding what. I would put my knowledge and experience in business against your ivory tower wishful thinking any time. Review our discussions – any time that you have tried to substantiate your position, I have dismantled your arguments. The only thing you have is to ignore the law as a basis, build your castle and then, and only then, invite unsuspecting people in. Perhaps the imagery of building on shifting sands is too subtle for you. More likely,. you simply refuse to harbor any concepts that may destroy your dogma. Concepts like the basics of patent law. This is the willful blindness Caused by your dogma.

    Wake up. Open your eyes. Join the real world.

  128. Bobby February 24, 2011 2:12 pm

    BD,
    “You have consistently denied the value promoted by the Keep Out zone (forcing new creativity with new solutions) – which destroys your argument about patents retarding progress. You have consistently, and merely stated your dogma that patents are bad according to what you have “seen”. ”
    I do not deny that there is a social value of patents, I am just convinced that the cost outweighs the value. Again, there is a rather comprehensive argument made in the book “Against Intellectual Monopoly,” which is written by two economists, laden with examples, and gratis digital copies are legally available. I suggest reading that if your dogma will allow you to entertain a contrary view.

    “You eagerly quote Jefferson on the negatives, but refuse to even acknowledge the “liberal encouragement” quote by Jefferson.”
    Jefferson did say that, but liberal encouragement of ingenuity need not be through patents. Grants, loans, and government programs can do that as well, and it’s hardly ‘encouragement’ anyway if the result is less ingenuity.

    “Review our discussion”
    You mean like this one, where you show yourself incapable of understanding what stealing means, something even small children routinely grasp? Or the ones where you’ve claimed without substantiation that patents are natural and constitutional rights despite my bringing up explicit claims to the contrary? You also seem to think that patent law grants injunctions for parties not licensing or using the patent because their feeling are hurt or whatever, when it seems to fail the four factor test for injunctions.

  129. Stan E. Delo February 24, 2011 6:20 pm

    Bobby-

    Your suggesting that BD doesn’t understand any aspects of this is a very novel concept to me. He has personally taken great pains to Try to steer you into useful directions, but to no avail apparently. In all of your enthusiasm, or whatever you happen to call it, you seem to have glossed over about 85% of all IP rights that Might be possible here in the future. Why are you so desirous of taking away Any of my possible patent rights? Because you are not able to invent anything of your own independently? I suspect this latter is the real deal, but only the Shadow really knows at the end of the day. It would be absurd to think that you had been engaged to promote any one else’s agenda, as you would probably have been fired within the first few days. Nope… Bobby is an independent entity.

    Hasta la vista~
    Stan-

  130. Blind Dogma February 24, 2011 9:09 pm

    Bobby,

    You are still in deep denial. It is easy to delude yourself when you cannot understand (and refuse to understand) value and compare it to costs that are glued to the inside of your tightly closed eyelids. And make no mistake – you are deluded.

    Jefferson: … need not be through patents … can do that as well, and it’s hardly ‘encouragement’ anyway if the result is less ingenuity.” – STILL not admitting the full force and meaning of the actual quote – like I said – you “see” only that which you want to see. Even in admitting a quote, you cannot accept what that quote purely states.

    Our discussions:You mean like this one, where you show yourself incapable of understanding what stealing means

    Let me ask you Bobby, Can any type of IP qualify to be stolen? Do you understand why I purposefully chose a “charged” term? Was this term ever actually part of our discussion?

    So before you banter about with “something even small children routinely grasp?” consider the context and consider the nuances that may, no wait, that have escaped you.

    Or the ones where you’ve claimed without substantiation that patents are natural and constitutional rights despite my bringing up explicit claims to the contrary?

    This topic is not even sand upon which to build a castle, but rather your pitiful attempt to invite me into your litter box. Review how I dismantled your previous attempts at this snare. Your views tied to this show how tightly clenched your eyes really are, especially as you seek to disavow any portion of the Quid Pro Quo to the inventor, who in your “ideal” world doesn’t really exist. Damn the patent law for recognizing him in the basic precepts. That just seriously messes up your entire philosophy. And by the way, since real law does recognize the inventor and real law does not dismiss him as you would, we need not even reach your litter box, because, as I have shown in my comments in return to your “explicit claims,” that the law as is – destroys your premises. The philosophical snare that you are so proud of simply doesn’t matter, because the rest of your position fails even if I were to fully grant you your mere Statutory Basis. You seem to keep forgetting that the statutory basis is law, and that I keep on beating you over the head with – yes – law. The very law you refuse to recognize.

    You also seem to think that patent law grants injunctions for parties not licensing or using the patent because their feeling are hurt or whatever, when it seems to fail the four factor test for injunctions.
    Yet another mythical discussion Bobby? I know for sure that I have not discussed ignoring the four factor test for injunctions, because I do not hold that view. I do, on the other hand, do recognize what the basics are to the actual patent right and the legal ramification of those basics. I do recognize the very first primal reason of equity. It appears that you think that you can piggy back onto discussions that I have had with others (notably IANAE), and think that we have been discussing these matters.

    That would be wrong.

    You haven’t made it out of the batter’s box yet, and you want to steal third base. You need to show that you understand the basics first. This you have not done. In fact, quite the opposite, you have refused to acknowledge even the basics, preferring to play in your litter box and build imaginary castles on the shifting sands.

    Besides which, IANAE has failed to prove his points, let alone yours, in the discussions between he and I. His tired tactics that he so liberally applies at Patently-O simply do not work here (as tellingly evidenced by Gene calling him out on them). So even if you think that our discussions included discussions with others, you still need to review our discussions, because you still are not getting it. You still need to wake up, still need to open your eyes, and still need to join the real world.

  131. Bobby February 24, 2011 10:24 pm

    “STILL not admitting the full force and meaning of the actual quote – like I said – you “see” only that which you want to see. Even in admitting a quote, you cannot accept what that quote purely states.”
    Jefferson said something nice about patents that time and a few other times. I’m not denying that. But I also realize that he and others had healthy skepticism towards the system from the start, and that he probably didn’t have the tools to properly judge the efficacy of the patent system.

    “Let me ask you Bobby, Can any type of IP qualify to be stolen? ”
    There are certain type of fraudulent behavior that might be fair to reasonable to call stealing (although they still probably wouldn’t legally be defined as theft), but generally speaking, most concerns would not fit that label. Certainly, most of the claims of theft/stealing are used in an inaccurate way.

    “Do you understand why I purposefully chose a “charged” term? ”
    Perhaps because you want to shoehorn a moral issue into patent rights, which I see as having about as much morals involved as jaywalking, breach of contract, or speeding.

    “Was this term ever actually part of our discussion?”
    I believe we MIGHT have gone a few rounds on this specific issue in the past.

    “Your views tied to this show how tightly clenched your eyes really are, especially as you seek to disavow any portion of the Quid Pro Quo to the inventor, who in your “ideal” world doesn’t really exist.”
    I don’t think the inventor shouldn’t exist, but rather that the patent system was not about serving the inventor or balancing the opposing interests of the inventor and the public’s rights, but rather serving the public by dangling a potential reward in front of an inventor. If treating the inventor very nicely with strong patent rights is the most ‘profitable’ method, than it would be the best policy. However, if the patent system inherently doesn’t work, then it may be a good idea for the USPTO to ‘close shop’ because any operation would be a loss for the ‘shareholders’ that make up the public.

    “You seem to keep forgetting that the statutory basis is law, and that I keep on beating you over the head with – yes – law. The very law you refuse to recognize.”
    I’m not claiming that the law is not the law. However, a hypothetical change to the law, which is something I often discuss, need not be rooted in the current law. Ron tends to discuss a proposed 3-tier patent system, and while there may be issues with it, the fact that it differs from the current law is not one of them.

    “I know for sure that I have not discussed ignoring the four factor test for injunctions, because I do not hold that view”
    We have not discussed this issue directly, but we have discussed whether or not a patent right includes the right to keep something from public use altogether. The four factor test would seem to suggest that patent holders do not have that right, at least not in real world practice.

  132. Blind Dogma February 25, 2011 1:33 pm

    Perhaps because you want to shoehorn a moral issue into patent rights, which I see as having about as much morals involved as jaywalking, breach of contract, or speeding.

    Very telling Bobby. While speeding and jaywalking are more safety-oriented – one wouldn’t want to jaywalk across a busy and quickly moving thoroughfare – both for one’s safety and for the safety of others (and similarly for speeding). Each of these two are easily seen as more the nature of prudent guidelines that should allow some bending as to enforcement. However, your seeming lack of concern for breach of contract tells me that you do not care for promises made and considerations given. This indicates yet another area of law that you are ignorant of – and dangerously so. This disregard also reinforces the “take from the inventor” careless attitude that surfaces in your dogma. Your ignorance reinforces itself and points out why you seem incapable of understanding what the basic and true Quid Pro Quo means. You keep bastardizing that concept to fit your dogma and I keep telling you that you can’t do that. Your response to the reality is to build (pipe)dream castles on your shifting sand (your groundless hypotheticals). You are simply out of touch with reality. I keep on pointing out to you that you simply must understand the basics of the laws that you want to change to fit your dogma. Yet you blithely maintain a willing, purposeful carelessness for their importance.

    The fact that (yet again) you want to avoid any sense of moral issue in your Dogma (and your constant avoidance of Stan’s legitimate questions) indicates that you might actually be aware that you have a very serious moral flaw in your dogma. You want to believe that inventions should be free to every one – your post at 97 including “ Of course, merely copying can be very good as well” indicates that you think copyright is also something that can be trampled on without any moral implication. And you are correct in a single instance – your analogy to slavery is indeed horrible – but not for the reason you think. It is very telling as you equate the inventor’s work as something that should never belong to the inventor: “ but the answer is that the people should have never been property in the first place.” You are quite missing a moral dimension to this argument – as well as the obvious logical one that inventions are created by their owners while slave were not created by their owners. Yet another farm policy type of logical argument that you have used to try to make a point that won’t be made because that point is fatally flawed.

    (You can review our past discussion on exactly why I do hold the moral high ground here – and why I have no problem using that vantage, especially as you seem to insist on making argumnets with analogies that you do not understand).

    A point here is that disagreeing with how the laws should be constructed may not be indicative of a moral issue (Ron’s three tier system discussion for example) – but it can be indicative – as emblazoned by your posts. You see Bobby, the larger issue is not so much that you want to propose an alternative system – it is the foundational aspects that drive your alternative system and your lack of care or concern for understanding the very foundations. Your posts exhibit an I-don’t-care lack of respect for the basics underpinning the law. It is as if you are running blind in your dogma. Running with a very big, very sharp pair of scissors in your hands. Running in a crowd. Running and not caring who may be impacted because you want what you want. Simply put – you care only for your (pipe)dream dogma. You don’t care that you are ignorant about what you are talking about.

    If you were to show a little care for the basics, like actually understanding them – I am sure that our discussion would be much different. As it is, you merely serve to make my case, time and again, rather unwittingly on your part, eyes clenched tightly closed.

  133. Bobby February 25, 2011 3:05 pm

    “However, your seeming lack of concern for breach of contract tells me that you do not care for promises made and considerations given. ”
    Not a moral issue doesn’t mean it isn’t important. Enforcement of contracts is important, but it is often devoid of moral issues, and consists only of practical issues. If the breach of contract involves deception or fraud, then I can see it being a moral issue, but that is not something inherent of breach of contract.

    “ Of course, merely copying can be very good as well” indicates that you think copyright is also something that can be trampled on without any moral implication.”
    Yes, copyright is a practical manner as well. Now, if we conclude that copyright ‘works,’ and that a certain type of infringement inhibits the ability of copyright system to work, then it may be practical to stop that infringement, but that doesn’t mean that copyright infringement is immoral. Now, plagiarism is a moral issue, not because the copying is unauthorized, but because of a false claim of authoring. It’s just as dishonest to plagiarize Shakespeare as it is to plagiarize J.K. Rowling despite the former not being protected by copyright.

    “It is very telling as you equate the inventor’s work as something that should never belong to the inventor:”
    The inventor has complete control (outside of other legal limitations) of THEIR copy of the idea, and we shouldn’t take that away (at least not without the inventor consenting). However, limiting the right of others to use copies of the same idea is a different matter, and it very well may prove impractical to do so, even with disclosure. Outside of patent statutes, inventors don’t naturally have that kind of power. That’s why security guards aren’t really useful to patent holders.

    “as well as the obvious logical one that inventions are created by their owners while slave were not created by their owners”
    Not usually directly, but many patent assignees are not the inventors either, and I think breeders of horses and other valued animals often consider the offspring of their property (at least if their property is the mother) to be their property until ownership is transferred, at least within certain limits. More importantly, the inventor did not inherently create all copies of the idea. They create the first copy of the idea, and may have created copies in the minds of others, which then became the property of those who just learned, and those others may have created copies for others too.

  134. Blind Dogma February 25, 2011 3:45 pm

    Enforcement of contracts is important, but it is often devoid of moral issues, and consists only of practical issues.

    When one wants to not see, one does not see.

    …is a practical manner ” – Morality is never a matter of being a “practical manner.” Situational ethics, such as what you describe, are not ethics at all, but a lack of them. As is reflected in your inadequate understanding and apreciation of law, your sense of morality and ethics is equally flawed. Your ignorance in one area reinforces your ignorance in others.

    The inventor has complete control (outside of other legal limitations) of THEIR copy of the idea, and we shouldn’t take that away (at least not without the inventor consenting). However, limiting the right of others to use copies of the same idea is a different matter,

    As you do not understand the Quid Pro Quo, you are doomed to not understand what you are saying with this statement and why we even have a patent system in the first place. It is not THEIR copy of the idea – it is the fact that they created the idea – hence your analogy to slavery fails miserably. I noticed you glibly overlooked that point. (Also, how do you propose that anyone could take away a “THEIR copy of the idea“? – wouldn’t such reside in their mind and could not be taken away? – whatever you are trying to say only comes out as drunken ramblings).

    Not usually directly, but many patent assignees are not the inventors either” – This is a non sequitur. No one mentioned anything about assignees in the immediate context. Do not confuse the ability of treating a patent as property with what the Patent Right is – one baby step at a time for you Bobby – no stealing third until you can show you can even get out of the batter’s box.

    and may have created copies in the minds of others, which then became the property of those who just learned, and those others may have created copies for others too.” – You are just babbling here. Your constant refferal to “copies’ indicates that you are a anti-software patent type who really not only does not understand the difference between patents and copyrights, but who doesn’t even understand copyright. I suspect that you have been exposed to the mantra, drank wildly from the Kool Aid, and now cannot even tell that you are drunk and speaking incomprehensibly. To you, the drunk, you make perfect sense. Everyone else just sees the stumbling fool.

    Friends don’t let friends become Bobbies.

  135. Stan E. Delo February 25, 2011 4:16 pm

    BD writes in small part:

    “and may have created copies in the minds of others, which then became the property of those who just learned, and those others may have created copies for others too.” – You are just babbling here. Your constant referral to “copies’ indicates that you are a anti-software patent type who really not only does not understand the difference between patents and copyrights, but who doesn’t even understand copyright. I suspect that you have been exposed to the mantra, drank wildly from the Kool Aid, and now cannot even tell that you are drunk and speaking incomprehensibly. To you, the drunk, you make perfect sense. Everyone else just sees the stumbling fool.
    Friends don’t let friends become Bobbies.
    BD-

    I think I understand the logic of letting this continue, as it is a very good anatomy of the *reasoning* that the anti-patent folks are trying to use, and consequently where their White-washed *Ivory towers* might have fatal foundational flaws. Your analogy here really rings a bell, as I have seen normally intelligent people turn into complete fools when they have had too much to drink, and they seem to think they are doing just fine. I am reminded of a line out of Hunter S. Thompson’s very strange book entitled Fear and Loathing in Las Vegas… The gist of it, which I am paraphrasing here said something like:

    There is Nothing, absolutely nothing, as pathetic as a grown man on an Ether binge.

    Stan~

  136. Stan E. Delo February 25, 2011 4:44 pm

    How about an Ethereal Ether Kool Aid, with a Eucalyptus base flavor just to keep them awake for a few minutes, and a few Juniper berries for a bit of tang? We would have to add the volatiles locally, because they are highly flammable.

    Stan~

  137. Bobby February 25, 2011 5:03 pm

    “Morality is never a matter of being a “practical manner.”
    I did not say it was. However, things that are not moral issues can be practical matters. I hold that copyright is a practical system, not a moral one. There may be cases where copyright infringement has a moral component, such as when copyright infringement is also plagiarism, but it is not something inherent in copyright infringement. I suppose if you want to look at it this way, it’s not the copyright infringement that is immoral, but rather the plagiarism.

    “Also, how do you propose that anyone could take away a “THEIR copy of the idea“?”
    I didn’t say that we could and what I said we shouldn’t do is take away their right to control their copy. What we could possibly do is force them to reveal their invention or prohibit them from using their invention in a certain manner that the law doesn’t otherwise prevent. Doing that would be crazy and a huge violation of their rights, and I wouldn’t support it.

    “It is not THEIR copy of the idea – it is the fact that they created the idea – hence your analogy to slavery fails miserably.”
    My comparison to slavery is that we decided humans should not under any circumstances be the subject of property, and that likewise it’s reasonable that ideas in the abstract should not be the subject of property. If we conclude that the patent system retards progress, than they share the factor of both being things that should not be property. There is no intention of the comparison being taken to a level beyond that.

    However, while not related to the central point in drawing the comparison, your distinction of creation seems to be in conflict with how we treat other living things that can be the subject of property. My role in the creation of my dog’s puppies, which are generally going to be considered my property, is not going to be substantially different than that of a slaveowner and their slave’s children.

    “Your constant refferal to “copies’ indicates that you are a anti-software patent type who really not only does not understand the difference between patents and copyrights, but who doesn’t even understand copyright”
    No, I understand the mechanics of the system, but I’m talking about how things work absent or outside of the patent and copyright systems, which exist only in statutes. Please, try to pay attention. Perhaps it would be easier to explain with an example of non-copyrightable material:

    If I have a database that I compiled that contains useful data, I can sell you a copy of that information. However, unless we have some other contract, I can’t prevent you from selling copies of that database after I sell you a copy because the copy I sold you is your property, which you are free to do what you want with. While I made the original copy, and thus subsequent copies would likely not exist without my efforts, I cannot in any way consider any copy of the database but my own my property, and I cannot consider the database in the abstract sense my property. Absent copyright, all works function in this manner. Inventions would work in a similar manner absent patents.

  138. Blind Dogma February 25, 2011 5:48 pm

    No, I understand the mechanics of the system, but I’m talking about how things work absent or outside of the patent and copyright systems, which exist only in statutes. Please, try to pay attention.

    With the fullness of respect that you have earned, Bobby, YOU DO NOT UNDERSTAND THE MECHANICS OF THE SYSTEM. You have shown no understanding – only your dogma. Your attempt to explain patent and copyright law to me is absolutely and stunningly pathetic. I am truly amazed that you are so clueless

    My “paying attention” to your wishful fantasy castle building on shifting sands will not change the fundamental flaws in your dogma. Once again, you wish to invite me in to your castle and enjoy the view from the tower – Only a fool enters such a castle, let alone climbs to the top of it. ALL that you have is pure fantasy.

  139. Ron Hilton February 25, 2011 9:59 pm

    …Imagine there’s no patents
    It isn’t hard to do
    Nothing to license or sue for
    And no injuctions, too…

    …Imagine there’s no copyrights
    I wonder if you can
    No royalties for artists
    A “Brotherhood of Man”…

    …Imagine all the coders
    Sharing all the source…

    …You may say I’m a dreamer
    But I’m not the only one
    I hope someday you will join us
    And the world will download as one…

    Uh oh, here come the Copyright Police! Ah c’mon, parody is fair use, right? Free the IP! Power to the People!

  140. Ron Hilton February 25, 2011 10:27 pm

    Oh drat, the trademark symbol got cut off from “Brotherhood of Man”.
    Let’s change it to “No trademarks and no brands…”

  141. step back February 26, 2011 5:08 am

    Ron Hilton,

    We don’t have to imagine
    (or sing your sing song)

    It was called the Medieval or Dark Ages
    Secretive Guilds ruled the roost
    Advancements were nor recorded or shared
    When a craftsman died, his secrets went with him

    For an entertaining vision of that “imagine” world,
    You might want to read this book:
    “Pillars of the Earth” by Ken Follet

    It follows the exploits of a family of cathedral builders
    as they battle against the guild system
    and its power and secrets retaining ways

    Just imagine!

  142. Bobby February 26, 2011 7:38 am

    BD,
    The mechanics are fairly simple. An inventor who is the first to invent (in the US) and disclose a useful, novel invention in a manner that meets all of the criteria for getting a patent is given a temporary right to exclude others from using that invention. In copyright, the author of an original work is given the right to exclude others from making copies or derivative works without permission.

    In the previous posts, I was not trying to explain copyright and patent laws to you, but rather how things function in their absence.

  143. Blind Dogma February 26, 2011 9:16 am

    Bobby,

    I note that the text you wish me to read is written by two life-long academics who lack any real world experience.

    Ivory Tower economists who use “Slashdot” as their editing board are merely projecting an agenda. I’ve been through academia and I note its disconnect from reality. Such are extremely poor sources to base law upon.

    And while I do not endorse the views of The Patent Prospector, you might consider reading this piece and thinking about his points (especially in your Utilitarian Mode):

    http://www.patenthawk.com/blog/2011/02/protection_not_incentive.html#more

  144. Bobby February 26, 2011 1:22 pm

    ‘I note that the text you wish me to read is written by two life-long academics who lack any real world experience.’
    Hopefully, you can judge the book by its own merits instead of pigeonholing the authors. I also see a good bit of room for debate on what constitutes ‘real world experience.’ The authors are inherently authors, and they have almost certainly at least acted as consumers. They don’t appear to be experienced entrepreneurs or IP attorneys, but it’s worth noting that in a great many cases, entrepreneurs and IP attorneys likely have a significant vested interest in the status quo or stronger IP.

    The article you posted is fairly interesting, but didn’t really seem to address the points made in the essay it attempted to debunk. Perhaps Hawk’s argument has some validity if the expected scope of a patent doesn’t go significantly beyond offsetting R&D costs, in which case it could be painted as offsetting the externality associated with creative work that is easily copied, and thus be merely removing a disincentive. However, that operates under the assumption that market forces do not already adequately offset that externality, while the essay suggests that this is generally not the case.

  145. Blind Dogma February 26, 2011 5:52 pm

    and they have almost certainly at least acted as consumers.

    Bobby, this is yet another in an excessively long line of comments of yours that show you lack critical thinking.

    Let’s first start with your ignorance in yet another facet of life – understanding the academic world. Life-long academics (not a pgeonholing by me – but an observable fact) live in different world. I have been through that world of academia – where often “publish or perish” is a truism, and publishing boring stories no matter how true they may be, won’t achieve tenure (or be pursued). If you had looked critically (rather than drinking the Kool Aid vociferously) you would have seen the mention of extensive edit/review by members of Slashdot – a known biased and unreliable source of pure anti-patent rhetoric. Once again, you see only what you want to see and miss the significantly vested interest that just so happens to support your Dogma. Turning a blind eye, as it were, to the absence of a truly non-vested appraisal.

    Further, the notion that “acting as consumers” has even the least bit of correlation with patent knowledge is absurd. This is worse than your “I heard a farm policy” line awhile back.

    Lastly, you completely miss the Utilitarianism aspect of the Patent Prospector article in that it lambastes the very type of academic tripe you love so much, and rather paints a more cynical view of human nature. It is not at all concerned with any notion of the adequacy of market forces offsetting externalities (a pipe-dream nonsensical phrase which means nothing) but rather points out that inventors needs protection (this is the utilitarian philosophy angle). While I do not agree with the Patent Prospector’s viewpoint per se, having you read the article was a test to see if you would miss the inventor angle. You failed that test horribly – dreaming up more drunken dogma. And that is what is so laughable about your earlier litter box snare – even under a strict Utilitarian viewpoint of patent rights, your dogma fails. You have obviously imbibed in an anti-software patent Constitution philosophy glass or seven of Kool -Aid and feel primed to attack patents on those grounds – yet you don’t recognize the very short limitations of your knowledge. You have fixated so heavily on anti-patent rhetoric that you quite literally cannot see anything else.

  146. Stan E. Delo February 26, 2011 6:47 pm

    Bobby-

    How could you possibly not get the inventor angle that the PatentHawk article presented? It’s even worse than I thought, and here I thought BD was exaggerating or something. Scary that folks like you are still out there, but probably not for very much longer. You are probably already familiar with Mike’s *blog*, but just in case you haven’t been there before, you can find the TechDirt blog here=> http://www.techdirt.com/ That should put you right in Hog Heaven, and you could join his large legion of loyal supporters, who tend to be rabidly anti-patent, and seem to be mostly washed up and bitter “software engineers” if such a term is actually a valid one or not. Your field is probably going to get out-sourced to India anyways, so why should you care what happens to patent law here in the US at all?

    Stan~

  147. Bobby February 26, 2011 8:21 pm

    BD,
    “Life-long academics (not a pgeonholing by me – but an observable fact) live in different world.”
    That may be a factor against them, but they also have the angle of being economists, and economists are the ideal group to listen to on seeing the system as a whole and evaluating.

    “If you had looked critically (rather than drinking the Kool Aid vociferously) you would have seen the mention of extensive edit/review by members of Slashdot – a known biased and unreliable source of pure anti-patent rhetoric. ”
    Someone is quite upset, and you seem to be overstating the influence that Slashdot played. The notes suggest that they gave a bit of feedback on early drafts. Perhaps they actually did play a very large role, but even that wouldn’t make their points invalid.

    “Further, the notion that “acting as consumers” has even the least bit of correlation with patent knowledge is absurd.”
    It was not so much that it means they have a good knowledge of patents, but rather that they are not isolated from the system which they write about, thus being a bit less ivory tower. Also, you seem to be skipping the author part. This book is not just about patents, but rather, both patents and copyright. Even lifelong academics will have the same pool of books, movies, and medicine as the general public, and what really matters here is understanding the system as a whole. I can see patent lawyers and entrepreneurs having some advantages at understanding some things, but I don’t see it as a particularly large advantage for a gestalt view, and one can argue that those particular experiences may tend to sully one’s ability to look at the system objectively. For example, the legally erroneous usage of ‘theft’ or ‘stealing’ is quite common among those with a vested interest in IP. If one can’t differentiate the two, then I see that as a big roadblock to looking at things objectively.

    “It is not at all concerned with any notion of the adequacy of market forces offsetting externalities (a pipe-dream nonsensical phrase which means nothing) but rather points out that inventors needs protection (this is the utilitarian philosophy angle).”
    Hawk mentions the externalities, and the externality is precisely why protection is claimed to be needed. A company spend hundreds of millions on a drug, and then other companies just copy it without doing as much work, getting the benefit without the cost. That is a textbook example of an externality. If there is some other reason for needing protection other than recouping costs, please explicitly state it because I follow the cruel notion that patents in practice are effectively all about money.

  148. Ron Hilton February 26, 2011 11:08 pm

    In medieval times it was a lot easier to maintain trade secrets. Almost anything can be reverse-engineered nowadays. Bobby’s IP-free world sounds more like a socialist utopia. They always sound good in theory, but unless and until a fundamental improvement occurs in human nature, clearly defined property rights, including IP, will remain the only practical basis for a successful economic system. The proper role of government is limited to maintaining the conditions necessary for a healthy, competitive free market. Even John Lennon didn’t give up his considerable personal property, did he?

  149. Blind Dogma February 27, 2011 10:51 am

    Bobby,

    Every single point of your last response once again makes my points for me:

    You see only what you want to see.

  150. Ron Hilton February 27, 2011 11:47 am

    I don’t think Bobby’s IP-free world would usher in a new dark ages. It’s much harder to maintain trade secrets nowadays. Almost anything can be reverse-engineered. Bobby’s world sounds more like a socialist utopia. They always sound great in theory, making rosy assumptions about basic human nature, but never work in practice. Even John Lennon never gave us his considerable personal property, did he?

  151. Bobby February 27, 2011 2:03 pm

    BD,
    I’m asking you to show me what reason inventors need protection for besides covering R&D costs. If you can show me another reason, I will try to see it. If what I’m to see is the emperor’s new clothes, then I’m just as unfit as that child that keeps saying he’s naked.

    Ron,
    It’s actually a more pure form of capitalism than our current system that requires far less government involvement (and which greater technology will only continue to make harder to enforce), and I’m not making any assumptions that people are good deep down inside or anything like that.

    Also, IP-free is not entirely accurate. I am not opposed to trade secrets. Stopping trade secrets requires active steps that invade privacy. I am not opposed to trademarks in general, although I can see some places that they might need serious revision. Trademarks as identifiers are useful to consumers in informing themselves to make proper decisions.

  152. Blind Dogma February 27, 2011 2:53 pm

    Bobby,

    Full circle (yet again).

    If you can show me another reason, I will try to see it

    Understand the basics of law and you will have all the answers you ever need. And you will not have to go to career academics to fill in the backdrop of your Dogma.

    I will not spoon feed you basics that you will refuse to swallow, much like a toddler in a highchair spitting the food all over the place. You need to learn to feed yourself (and that would be learning to do more than drink the Kool AId).

  153. Bobby February 27, 2011 3:35 pm

    I understand the basics, there isn’t another reason, and you know it. if there was, you could outright state it., and we could progress a lot faster. But you don’t have an answer, so you bluff that there is one, and that anybody who doesn’t see it is a fool.
    Even if there was another reason, it doesn’t change the fact that patents often function as economic incentives. If you can get a useful patent, you can exclude direct competition or collect royalties, thus securing a profit.

  154. Stan E. Delo February 27, 2011 4:13 pm

    Thanks for that last sentence Bobby, as it sorta gives me just a little glimmer of hope that you and others can understand the creative process. Creating a working invention is much like creating a child, whose potential can never really be appreciated unless it is allowed to grow and mature a bit. Without any assurance that I might be able to protect the market for my invention, why would I ever bother to create it in the first place? No Wright Brothers, and probably no light bulbs until very much later. The invention itself is not really the whole thing, as it would have probably never happened unless *someone* had gathered enough experience and expertise to put 3 and 2 together to arrive at *Z*. Don’t you think all that experience and wisdom is worth a 20-year Quid Pro Quo for the inventor? The only down side I happen to see is that the manufacturer Might have to pay a 5% royalty on the Wholesale price to be able to use the improved product to make their business more attractive or successful. Hardly an onerous burden I tend to think, and they can always just say No.

    Stan~

  155. Bobby February 27, 2011 5:37 pm

    Stan,
    It’s funny that you mention creating a child, because that’s a task that is pretty well accepted as something that generally doesn’t need external motivation. Living things have an intrinsic desire to reproduce. Similarly, psychology suggests that creative behavior is similarly innate, and that if given the opportunity to be creative, we will use it. That sentiment was reflected when Edison said “I never did a day’s work in my life. It was all fun,” and many have echoed similar sentiments throughout history.

    However, that still means we have to have the opportunity in order to be creative, and most people have other economic needs besides intellectual satisfaction. This is where a patent system could be theoretically helpful in letting inventors have those opportunities. Of course, there are other ways we could help do this as well, including grants, loans, and tax deductions for R&D. However, the first burden of proof that we need a system to allow government intervention to provide ample opportunity is evidence that absent said government intervention, market forces are inadequate. Just that hurdle seems to have little evidence, let alone that patents are the best tools.

    “Don’t you think all that experience and wisdom is worth a 20-year Quid Pro Quo for the inventor?”
    Whether it’s worth it or not depends on what we get and what we have to pay. If the value to us of what we have to pay is more than what we get, than it’s not worth it. If the value to us of what we get is more than what we have to pay, then it is worth it. If patents were limited to a 5% wholesale royalty, then I would probably have a lot less concern about them.

  156. Stan E. Delo February 27, 2011 5:59 pm

    Bobby writes in small part:

    If the value to us of what we get is more than what we have to pay, then it is worth it. If patents were limited to a 5% wholesale royalty, then I would probably have a lot less concern about them.

    Bobby,

    Usually most invention licensing deals are for more like 3 or 4 percent of the wholesale price, but I tend to be a bit optimistic I suppose. On the other hand, why should you be concerned at all? None of Your money or time has been invested has it? I tend to object when you propose doing away with My patent rights entirely, and I happen to believe I am not alone in that regard. Two hundred years of success with the American experiment would seem to indicate that your premises might be wrong.

    Cheers,
    Stan~

  157. Bobby February 27, 2011 6:44 pm

    Stan,
    “On the other hand, why should you be concerned at all?”
    Because I am a consumer. If government action is actually inhibiting innovation, I will likely be negatively affected, most commonly through higher prices or reduced availability. If I happen to attempt to be an entrepreneur in a legitimately innovative manner, an stifling system will actually impede my ability to successfully innovate. As a citizen, it is also a concern that taxpayer funds are being used for much research that will end up being protected by patents, and US trade policy being affected by powerful rightsholders to force developing countries to adopt IP laws in line with our own doesn’t sit well with me either.

    “Two hundred years of success with the American experiment would seem to indicate that your premises might be wrong.”
    This is perhaps where the biggest fallacies tend to come from, and it’s quite favorable with the tendency of IP to move towards stronger and stronger over time. You have to be very careful in isolating other factors. If you don’t, you can come to some ridiculous conclusions. Europe had a great degree of social change while they had printing monopolies who engaged in censorship of heretical or dissenting works. However, it’s absolute nonsense to suggest that censorship brought about revolution. Most accounts are going to say that change happened despite censorship largely because of the increased communication the printing press brought, even with attempts to control it.
    When evaluating American success, you have to consider the success in realistic terms as opposed to patriotic propaganda, and consider the other factors that may have played into any success we had or didn’t have. Consider how large influxes of immigrants, constantly bringing new ideas, the US having plenty of land to be settled, and maybe even some of the democracy and individual liberty stuff might have also played a role. Also, keep in mind that you have to consider the path that we would already be on. If, for example, we determined that the growth of human progress is exponential, then the rate of progress is going to be much greater in the future than the past without any other factors involved. It could even hold true with factors that are negative, but not negative enough to counteract the progress. So, without further controls, the only evidence that the success you cite provides is that patents are not so bad that they have reversed human progress.

  158. Blind Dogma February 27, 2011 7:19 pm

    it’s absolute nonsense to suggest that censorship brought about revolution.

    Another in a long line of “farm policy” statements made by one who couldn’t care enough to check if he was right or not, but since the phrase sounds good – use it.

    Oppression – as signified by censorship has brought about many a revolution, Bobby. Take a guess why this country in particular has such strong First Amendment Rights.

    It is almost as if you cannot help yourself but say inane things. Much like a drunk person. Perhaps when you sober up you can come back and read this thread and realize how many times you have simply said things that are just too hard to believe.

  159. Bobby February 27, 2011 7:44 pm

    BD,
    So, are you arguing that censorship works in giving us social progress, not telecommunications and free press?

    “Take a guess why this country in particular has such strong First Amendment Rights.”
    Because we recognize that censorship inhibits progress?

    Also, still waiting on that alternative explanation for why inventors need protection other than to recoup their costs. Stan seems to think I’m on the right track with my mention of securing a profit, even though I’m talking about that externality ‘nonsense,’ and of course, the phrase Quid pro Quo that you love so dearly suggests that they actually are getting something of value out of participation.

  160. Stan E. Delo February 27, 2011 8:07 pm

    BD-

    Doh! I think I will head off and watch the latest release of The Simpsons just to get a little more real after having to listen to Bobby’s very warped view of reality. Similar to an earlier remark by BD, Friends don’t let friends fly 2-stroke aircraft!

    Stan~

  161. Ron Hilton February 27, 2011 11:37 pm

    Investing in leading-edge innovations is about as financially risky as it gets. If the best you can hope for is to recoup your costs, why would you ever take the risk? The profit motive is fundamental to free enterprise. The ability to fail repeatedly, learning more each time you fail, until you finally hit a home run, is the essence of the American dream. Start-ups are not simply minature corporations. Their primary purpose is to search for a successful formula to commercialize a promsing idea. The difference between an entreprenuer and a bureaucrat is that the former is motivated by sucess, whereas the latter is motivated by avoiding failure. Big business and big government are bureaucracies that are largely incapable of innovation, unless they create small entreprenuerial incubators within their organization. But it is usually more successful to spin out/privatize such ventures. Freedom to fail repeatedly is essential to making eventual breakthroughs. The only way a non-profit system can work is if success is “guaranteed” every time. That is anathema to creativity. That is the essence of socialism, which at best can only maintain a status quo, and in practice yields stagnation as it sucks the life out of the creative human spirit. No, “recouping costs” is not nearly enough. It bespeaks a zero-sum socialist mentality. Private property rights and the profit motive are the very key to America’s progress, unequaled in human history.

  162. Bobby February 28, 2011 7:54 am

    Ron,
    The psychology mentioned suggests that when it’s about the incentive, we close ourselves to innovation, while when it’s about creating for the sake of creating, we do much better. Thus, what we need to do to foster innovation, at least in individuals, is not to lure them on a path, but to clear obstacles out of their way.

    The reason to speak of recouping is about the difference between protection and incentive. Protection is defense against harm. If I expend money, time and effort without getting enough in return to meet my needs, than expending those resources resulted in a harmful loss. This is the reason why a musician, actor, writer, or other forms of artists often has a day job when starting out. The money, if any, that full time dedication to their craft at that stage would provide is probably not be enough to feed and shelter them, which is a major disincentive to such behavior. If they get to a stage where they can meet their needs through their craft, then they are no longer subject to that disincentive, and may be able to put much more time, effort, and money into it. Thus, if patents are only playing the role of protection, as Patent Hawk claims, than what happens is not adding an external incentive, but rather, taking an external disincentive away.

    Patents being an incentive, on the other hand, would means that they are driving the action and playing an active role. Thus, patents provide a reason to do something instead of just eliminating a reason not to do something. If this is the case, then psychology suggests that we’re actually inhibiting innovation because attempts at innovation are done for the external chance at large sums of money instead of an internal desire to be creative.

  163. Blind Dogma February 28, 2011 8:12 am

    Come into my castle, look out the view of the tower – never mind the movement of the castle to and fro as the sands shift. Just close your eyes and follow me.

  164. Gene Quinn February 28, 2011 10:35 am

    Bobby-

    You say: “The psychology mentioned suggests that when it’s about the incentive, we close ourselves to innovation, while when it’s about creating for the sake of creating, we do much better.”

    Frankly, I don’t care what “the psychology” suggests. Clear, unambiguous reality proven throughout history over and over again proves that there is more innovation with an incentive structure than when we rely on the benevolence of individuals to create. The truth is if you cannot make money with your innovations you have to have a day job and will innovate less and only in your free time. That is not a strategy for maximizing innovation. Simple math and knowledge about the number of hours in the day ought to conclusively prove this point. Add history and the proof is overwhelming.

    -Gene

  165. Ron Hilton February 28, 2011 11:29 am

    The incentive is not to make people more innovative or creative. That has to come from within. The incentive is there to encourage the necessary investment to commercialize the invention and bring it to full fruition for the benefit of society. Even “open source” software has a substantial cost associated with making it commercially viable. A company can’t really rely on it unless the support and maintenance infrastructure is there. The creative part to do the initial coding is the easy part from a commercial standpoint. Plus, it benefits society to financially reward innovators, because it gives them the financial independence to work on further innnovations. Most creators either underestimate or overestimate the strength of their own position under the patent system. Some think that a patent alone is the key to riches. It is only the first step in a long, difficult and expensive path to commercial success. Others think that patents are nuisance that only benefit their employers if at all. If corporate inventors were to band together, they could get much better compensation than the typical small cash award and plaque on the wall for their efforts. Not the windfall that the get-rick-quick inventors are hoping for, but some meaningful compensation. But many of them simply don’t care, as long as they have a decent salary and the freedom to innovate. But their employers do care, and do understand the importance of IP to the company’s commercial success, and that is why the patent incentive matters.

  166. Blind Dogma February 28, 2011 12:31 pm

    The incentive is there to encourage the necessary investment to commercialize the invention and bring it to full fruition for the benefit of society

    Not quite Ron.

    Granted, that is one incentive, but it is not “the” incentive. The incentive is the sharing of knowledge, pure and simple. The knowledge that individual inventors create – thus the primacy of those individual inventors cannot be made into some sort of second class consideration. Likewise, the patent system nowhere indicates any sort of guarantee of financial success – thus while hoping for such success and such successful commercialization is not a bad thing, it is not the thing. Your path also leads to the confusion that those patents not commercialized are somehow different in their inherent Patent Right (under law) than those that are commercialized. Patent law simply does not make this distinction for what it means to have a Patent Right based on use after grant. When the patent grant occurs – the Right that is earned is the same no matter what then transpires downstream. Ignore this basic principle at your peril.

  167. Bobby February 28, 2011 3:34 pm

    Gene,
    The Patent Hawk article BD posted didn’t debate the psychology and seemed to actually support the notion, but rather, it contested that patents functioned as incentives. The psychology in question has been applied by companies like Google, who have a policy called Innovation Time Off, which is dedicating 20% of their time to a project that interests them, thus letting them be somewhat isolated from the incentive structure. They claim that around half of their new projects originate from that 20%, so it’s certainly some good evidence for that side.

    “The truth is if you cannot make money with your innovations you have to have a day job and will innovate less and only in your free time.”
    That’s an issue of opportunity, not incentives. Of course, in order for there to be a concern regarding opportunity, market forces themselves have to be inadequate, which the paper contests as well.

  168. Ron Hilton February 28, 2011 6:54 pm

    Let me try to clearly define the terms as I am using them. Patent law provides for a quid pro quo exchange between the inventor and society. The inventor discloses knowledge of the invention to society in exchange for the limited exclusionary patent right. Neither of those is an incentive. An incentive is that which motivates the parties to actually want to make the exchange. For society, the “incentive” is to promote the progress of the useful arts, or at least that’s what the writers of the Constitution believed it to be. For the inventor (or the assignee – whoever will own the patent right), the incentive is most likely to get a competitive advantage of some kind that will lead to financial gain. Now it’s certainly possible that there may be other incentives. Maybe the inventor just wants the bragging rights. Maybe the inventor or assignee believes that the invention is bad (hurts the incumbent business model, harms the environment, whatever), and wants to prevent it from being used. But those are probably less likely motivations. Usually it is the potential financial gain from a monopoly market position or at least some leverage with one or more players in the relevant market. What is less likely, but what Bobby seems to be assuming, is that it is an incentive for the inventor to invent. To invent, the inventor mostly needs just the opportunity and resources to do so. The motivation comes from within.

  169. Bobby February 28, 2011 8:25 pm

    Ron,
    I think you may be really stretching it to try and cleanly separate the parts to retcon patent logic. You can’t disclose without inventing, and one’s ability to commercially use an invention is quite limited if you want to get a patent. From what I can gather, the encouragement of disclosure seems to be secondary to the encouragement of invention. Jefferson said that “Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility” and Lincoln described patents had “added the fuel of interest to the fire of genius, in the discovery and production of new and useful things.” Also, anything that can be effectively be kept secret for more than 20 years while being widely commercially used would only be patented by a fool, because they would be better served by a trade secret. If the primary concern is disclosure, then it’s quite pointless, since you noticed virtually anything can be reverse engineered today.

    While I acknowledge there may be other reasons why someone would seek a patent, the ones that you mentioned are rather poor examples, as writing a paper is easier for getting credit, and not disclosing is perhaps better for keeping evils at bay, at least if they aren’t just abusing flaws in the system to keep obvious improvements out. The leverage angle is fine, but leverage is only needed because of patents in the first place. You spoke of the need for defensive patents, but their utility is in canceling out other patents, and a system with weaker/less/no patents does a much better job of that. A defensive patent only has utility if the party suing has a use for what it covers. If you are sued by someone in a drastically different field, there’s a good chance your patents will be useless in that regard, and if you are sued by a non-practicing entity, you almost certainly have no leverage.

  170. Ron Hilton February 28, 2011 9:37 pm

    Jefferson’s “exclusive rights to the profits” and Lincoln’s “fuel of interest” are about as clear a reference to the profit motive that one could ask for. I’m not retconing anything. This is capitalism 101. I give up.

  171. Bobby February 28, 2011 10:18 pm

    The argument wasn’t over the profit motive. The argument is what is intended to be motivated by patents. You seem to be claiming it’s disclosure, while at least those two presidents seems to think it’s invention itself that is motivated. Without the modern psychology that neither had access to, the patent system motivating invention (through potential profit) itself would be sensible.

  172. Stan E. Delo February 28, 2011 10:19 pm

    Ron H….

    Your message @162 was Very well said in my opinion. Trying to reason with some folks is futile, unless they have some sort of innate intelligence. Otherwise you are completely wasting your time, as I am concerned about in BD’s case. Blind should be tearing up Mickey”s case right about now, instead of trying to prevent Bobby from saying really clueless stuff. I really wish I could just write a check to BD and say “Go get em!”, but unfortunately I can’t afford to do that just yet.

    Stan~

  173. Ron Hilton February 28, 2011 11:58 pm

    Imagine a Venn diagram with two circles, one representing one person’s experience and knowledge, and the other circle representing that of another person. All too often, the small intersecting region where the two circles overlap represents how intelligent each thinks the other person is. I prefer to try to learn from the other person if possible, thereby expanding my own knowledge and experience. How much better it would be to have the union of the two circles than the intersection. I have encountered people whom I would consider to be otherwise quite intelligent that really detest patents. That suggests to me that some reforms may be needed somewhere in the system. Especially if the alternative is to dismantle or seriously gut a system that has served the American people so well for over two centuries. Having said that, I don’t believe I have much more to add to this particular discussion. I have personally been enriched by it, and am sorry if that is not the case for some of the other participants. All I can say is to look at what I have posted already and see if you can glean what I have been trying to say based on my own knowledge and experience.

  174. Blind Dogma March 1, 2011 7:58 am

    Ron,

    You are obviously young and eager to learn.

    There is a saying that fits here:

    It is good to be open-minded, but not so open-minded that one’s brains fall out.

    As to “How much better it would be to have the union of the two circles than the intersection. I have encountered people whom I would consider to be otherwise quite intelligent that really detest patents. That suggests to me that some reforms may be needed somewhere in the system.“, there are reasons why the logic of intersection must play out at times. One of those times occurs when the philosophies are non-congruent. Forcing a union when there should not be one is not a good thing. Further, Being so open minded as to assume that otherwise intelligent people must have a valid reason for despising patents is to close your eyes to the human condition. Not wanting to see warts will not make those warts disappear. Irrationality and intelligence – think of your Venn diagram – the intersection therein resides the anti-patent basis. To simply accept the “need for reform” based on that intersection is to relieve oneself of critical thinking – that exact thing not to do when dealing with the law of innovation. Visit such places as slashdot and techdirt – there is a rage so blinding that anyone with eyes open can see the mantra that patents are evil. A war has been declared against patents. To close your eyes to the war will not make it go away. Wanting peace, happiness for all and harmony are good things – but the reality of the human condition makes it so that often one must fight for peace, one cannot make everyone happy and trying to do so (the Venn union) makes no one happy and harmony cannot be forced on those who refuse to open their eyes. When understanding the basics has been equated with corruption, the unlearned must first decide that they want to learn – they first must put their Dogma aside. That simply will not happen – the reality of the human condition precludes your Venn union.

  175. Ron Hilton March 1, 2011 12:30 pm

    BD,

    You must not have Googled me if you think I am young… 🙂 But it’s true that I am eager to learn. However, a willingness to explore and understand another’s experience and knowledge doesn’t imply an uncritical acceptance of it. On the contrary, I have strongly held beliefs in principles against which I test any new proposition. For example, although I believe that innovation is most likely to flourish under a strong patent system that enables small start-ups to compete more effectively with large established firms, I don’t discount that innovation can occur and be developed under the appropriate circumstances within large organizations if creative people are given the resources, opportunities, and freedom as Bobby stated, quite cogently I thought. His description of Google’s “Innovation Time Out” was an interesting and valid case in point, and fit with my own observation that “incubators” hosted by large organization can sometimes be productive. What I have observed, though, is that if such an incubator produces a disruptive technology that threatens the host’s inherent business model, it is rare that the host will embrace it. About the best you can hope for is that the host will spin off the “incompatible” IP as a separate venture to an outside investment group. Sometimes the opposite occurs, wherein a host will acquire a small venture for the express purpose of eliminating a threat to its market hegemony. That’s where antitrust law needs to be strengthened. I often find that those who are in favor of strong IP tend to favor weak antitrust and vice-versa. That is one case where I have explored both halves of the Venn diagram and believe that a union/harmonization between those apparently contradictory bodies of law is possible and indeed necessary.

  176. Anon April 15, 2011 8:39 pm

    If I want to attend the oral argument, how early do you think I need to arrive?

  177. Gene Quinn April 15, 2011 9:15 pm

    Anon-

    Impossible to say really. With Bilski you would have needed to be on line by midnight the evening before to get a seat. Everyone in line after midnight were only allowed in for 5 minutes in rotating groups.

    -Gene