Fairy Tales and Other Irrational Beliefs About Patents

By Gene Quinn
September 26, 2014

We are at a point in time where the overwhelming sentiment is against the patent system. Rather than celebrating innovators the public, and our leaders, vilify anyone who has the audacity to seek patent protection. The simple reality is that without a strong patent system investment in innovation will cease. This truth should be self evident to anyone with half a brain, but sadly it is not. There are many truly ignorant individuals who actually believe that investment in research and development will continue even if the day an innovation reaches the market it can be copied without recourse by competitors. What a fairy tale!

As Dr. Kirstina Lybecker has explained: “Incentives are essential to innovation due to the expense of research and development activities, and the public-goods nature of the resulting knowledge.” Indeed, there is no business person in the world who would ever invest the hundreds of millions or billions of dollars necessary to bring ground-breaking innovations to market without the expectation of the competitive advantage provided by a strong patent. In the real world investors seek a reasonable return on investment given the risk, which is quite substantial in the high-tech, innovative world. To ignore this reality one must be firmly planted in fantasy and not the real world.

The reality that it easily takes many hundreds of thousands of dollars in research, development, safety engineering and marketing costs to bring even a simple kitchen gadget to market. With all those sunk costs the innovator couldn’t hope to sell the product for as cheap as those who simply copy having invested nothing in terms of time or money to develop the product. Without a competitive advantage sane people do not invest money in even simple gadgets, which is why it is extraordinarily difficult to get a licensing deal without a patent, and why the first question investors ask is about your patent position. As celebrated inventor Dean Kamen has said, “[t]he first thing the bank or that venture capitalist will say is, ‘Do you have a patent?’” This is the common experiences shared by everyone in the industry. Those who say it isn’t so are simply not credible.

 

Ignorant Patent Haters

Those who hate patents want to pretend that patents aren’t necessary for some innovations because they cost so little to create. If spending hundreds of thousands to bring a small kitchen gadget to market is a trivial amount I applaud the economic success you have achieved in life, but to virtually everyone that is a meaningful amount of money on the line. But it just isn’t kitchen gadgets, this is true even for software, despite the unrealistic protestations of those who haven’t a clue as to what it takes to create a software program that works. It can take many years and many hundreds of team members to create a software package akin to something you might see from IBM or even a new Apple operating system. These things are not coded by a second year engineering student, and they are not trivial. It is amazing to me that anyone things creating software is trivial given how infrequently software works, how often it needs to be updated and patched, and all of the security vulnerabilities and identity theft issues that even the largest retailers face on an increasing basis.

Assuming arguendo that apps are trivial to create, which isn’t true if you want the app to actually work and do something useful, the reality is that apps are almost never patented. I get contacted every week by people who want to patent an app until they find out how much it will cost. Thanks to the onerous disclosure requirements for software patents you simply cannot get a cheap software patent any more, and it just keeps getting more expensive all the time.

But there is no reason to stop at the economic reality of innovating for an innovator. We can move forward to discuss national economies. The truth is that there is no evidence in modern history for a thriving economy that does not provide innovators strong intellectual property protections. The detractors will scream “correlation is not causation,” but that is merely code for “I choose to ignore all the evidence you have and pretend that you have no evidence.” These small thinkers also then have the unmitigated gall to proclaim that with no evidence to support a patent system they win. Really? They win without a shred of evidence to support their fantasy based theories that ignore the human condition and financial realities?

The World Bank classifies countries based on gross national income (GNI) per capita. High income countries have a GNI per capita of over USD 11,456; upper middle income of USD 3,706 – 11,455; lower middle income of USD 936 – 3,705 and low income of USD 935 or less. Where do you suppose you see the most patenting? If patents inhibit economic growth and opportunities, then you would expect to see a higher percent of patents in the low income economies, but you don’t oddly enough.  You find that the overwhelming majority of patent activity is in the high-income economies — upward of 85% of patent activity is in high income economies in fact. With that being the case how can anyone with a straight face argue that patents get in the way of economic development? High-income economies where patent rights are strong see a tremendous amount of patent activity while those lower income, middle income and even upper middle income economies, where patent rights are not very strong and not very desirable, see very little patent activity.

[Varsity-2]

If patents stifle innovation then those countries without a patent system would show run away innovation, which is simply not the case. Countries without a patent system have no innovation, and they also have no economy. I know that is an inconvenient truth for which you have no answer, but facts are facts.

Truthfully, those who erroneously conclude that the patent system inhibits innovation are among the most intellectually dishonest individuals you will ever meet. Either that or they are flat out allergic to the truth, or aren’t observant enough to arrive at an informed conclusion. At the very time that they claim that the patent system inhibits innovation they also lament the fact that there are so many patents on smartphone technologies. They actually complain about a patent thicket that is stopping smartphone innovation. Really? Perhaps they should open their eyes!

The modern smartphone came into being in 2007 when Apple released the iPhone and months later Google et al copied the Apple design and began selling it as a competing product. Since then, in the ensuing 7+ years smartphone technology has grown by leaps and bounds. By October 2013 there were already more than 1 million apps available for download in the Apple Store. Battery life has improved, screen strength has improved dramatically, the devices continue to get thinner, the cameras continue to get better and better, the displays get larger in response to consumer demand. Exactly what has the patent system stopped in the march forward in smartphone technology? NOTHING!

These uninformed patent critics point to the extraordinary number of patent infringement lawsuits filed relative to smartphone technologies. Of course, they are are wrong on the facts. If they had even taken the time to consult Wikipedia they would have realized that this argument is specious!

As pointed out earlier this year in an article on IPWatchdog.com by David Kline and Barney Cassidy, “[t]he estimated 124-plus smartphone patent suits filed between 2009-2012 are less than one-quarter the number of patent suits filed during the first “Telephone Wars” of Alexander Graham Bell’s time. Back then, the American Bell Telephone Company and its successor, AT&T, litigated an astonishing 587 patent cases alone.”

 

The Definition of “Innovation”

So how is it that people who otherwise seem intelligent and educated on the surface are able to come up with and actually believe the ridiculous things that they say about how the patent system inhibits innovation? It is because they simply do not understand the definition of what it means to innovate.

In April 2013, Susan Michel of Google spoke at American University in Washington, DC. She explained that to innovate is to put a product in the hands of consumers. That is, of course, not what it means to innovate. This is, however, how the patent critics define innovation. They say that the patent system prevents them from innovating because it is preventing them from distributing a product that they have never previously distributed. But that doesn’t mean that the product is new or the the science behind the product is new. New to you does not mean innovation, it may very well mean that you are infringing on the rights of the party or entity that actually created it in the first place.

Merriam-Webster’s dictionary defines innovation in this way: “1: the introduction of something new; 2: a new idea, method, or device: novelty.” Thus, it is rather clear that Michel and those from big-tech who rail against patent trolls are the ones who are misrepresenting and misleading with respect to the true definition of “innovation.”

Innovation is NOT about products in the hands of consumers. Innovation is about advance. Under a definition of the term innovation that focuses on products in the marketplace no university researchers innovate, scientists in Federal Laboratories do not innovate, research and development companies do not innovate, and independent inventors do not innovate. For crying out loud, Thomas Edison would not have been an innovator either based on this definition of innovation. How ridiculous is that? How ridiculous is it to pretend that Edison didn’t innovate, but the companies that licensed his patent rights and took products to market did? This offered definition of innovation strikes me as utter nonsense, but it is the way that patent critics can fool themselves into believing the lie.

 

Conclusion

All of the objective factual evidence supports the proposition that patents foster innovation. So you can believe the truth is naive, but what seems naive to me is when those without any proof still erroneously reach the conclusions about the patent system based on supposition and superstition. The lack of factual support for the anti-patent viewpoint speaks volumes about its credibility and reliability.

A strong patent system is undeniably of the utmost importance to a high tech economy. There can be no rationale debate otherwise. And given that all of the factual, historical and economic evidence is on the side of a strong patent system being vitally important those who wish to dismantle the system should bear a very heavy burden to prove they are correct. That is a burden they simply cannot meet because they have no objective evidence, only myths, fairy tales, supposition and superstition.

What is also equally indisputable is that companies such as Apple, Google, Priceline and Facebook were all founded on patented technology. But that is another story for another day, but that article is in progress and will once and for all dispel the lie that patents were not necessary for Silicon Valley start-ups. For crying out loud, Google founders filed two patent applications before the company was even founded and before the domain name Google.com was even acquired!

For more reading and volumes of additional proof about just how and why patents foster innovation please see:

 

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 61 Comments comments.

  1. Anon September 26, 2014 10:23 am

    One small, but possibly critical distinction: the US patent system is not – and never has been – a system built to support a “But For Only” rationale for having patents.

    I would be wary of any argument that can resolve and turn on that point, as such an argument is built on a fallacy.

    The nature of innovation beckons us to stay away from such a fallacy. It is truly only in hindsight that innovation appears to be a linear sequence, and that a “But For Only” notion can sustain the weight of being the only reason to have a patent system.

    I liken this to another visual model: the patent system as a paving mechanism. It is only in hindsight that today’s innovations are likened to roads, with well recognized paths of the pasts leading to the innovation. That is a decidedly false view. Rather than a network of roads, the intent of the patent system is to pave a parking lot – so that all the wide (and unknowable) variety of paths are enabled in the future because we are willing today to make a wide-open door style of appropriately tuned wide open door of 101, and honor a vigorous Quid Pro Quo as opposed to a Eye of the Camel version of 101 that only uses a Flash of Genius style of 101 front gate mechanism.

    The difference between these two philosophical vantage points provide a way of looking at the fork in the road that we are now facing.

    For me, the choice of a very wide paved parking lot as opposed to some misguided appreciation of innovation is clear.

  2. Rick G. September 26, 2014 11:49 am

    COMMENT DELETED.

    Note from Gene: This comment has been deleted due to profanity and Rick G. is now banned.

  3. EG September 26, 2014 12:27 pm

    Rick G.

    Disagreeing with Gene is one thing (I have at certain times). But your snarky comment crosses the line of civil into defamatory.

  4. Anon2 September 26, 2014 12:40 pm

    Rick G @ 2 – Banned!

    Gene,
    and anon @ 1,

    it is almost a tragedy that arguments/evidence/statistics regarding why a patent system is “right” or “good” has to pander to perspectives centered on the nation’s standard of living, the economy, goods and services, public/consumer good, etc. In fact all of these are side effects of a moral system which includes a strong patent system. They are all also side effects of individual rights, and property rights specifically, but they are not the reason why individual rights and property rights are “right” and “good”. Of course pragmatism and expediency, and “what works” rule modern philosophy and politics, so one must, when explaining why patent rights should be protected, pander to the short sighted sentiment of many social moderns. Unfortunately this is the same reason why proponents of capitalism fail in defending it properly…on moral grounds… they only refer to the resulting side effects not its rightness in principle…. but then again failure is the only thing likely to expect given the mentalities operating at large.

    Nice work, bad audience.

  5. Anon September 26, 2014 12:54 pm

    Anon2,

    Adam Smith was not available today to be in the audience.

  6. Bemused September 26, 2014 2:28 pm

    Rick G: You’re a great example of one of the major shortcomings of the Internet: it allows anonymous twerps like you to post stupidity like that without fear of repercussion. Guess you had a good dream last night and you woke up this morning thinking you actually grew a pair. Agree or disagree with Gene but at least he’s out there: front and center and clearly stating his beliefs and opinions without hiding behind an anonymous Internet name.

  7. Anon September 26, 2014 2:34 pm

    At the risk of appearing to defend Rick G., Bemused, I reject your notion that anonymity is to blame here, or should be even on the table as something to be blamed.

    The “shortcoming” you see is not tied to the internet, as I have previously explained that anonymous and pseudonymous discussion and debate enjoys a long and honored tradition.

    Yes, there are drawbacks. But much like the First Amendment protects speech that offends, the drawbacks are minor in comparison to the benefits. Further, here on the Internet, various controls exist in a range of options.

  8. SoftwareForTheWin September 26, 2014 6:14 pm

    Any software developer with an idea should weigh the risk-to-reward ratio of filing a patent vs building the software and competing with a live product.

    Some examples from those who chose implementation route:
    #1 WhatsApp sold to Facebook for $19billion
    #2 Twitter IPO’d for $billions without relying on any patents
    #3 Notch sold Mojang and estimates are his personal profit were at least $129m (on $330m revenues) – PLUS $profits from past several years operations

    About the only example that can touch that for filing a software patent is Google – but that was truly a different time (state of software patents in 1997 is totally different from 2014).

    We can moan and complain all day long about the various recent patent related changes – but the days of software patents being worth anything are over. A software developer has to look at the landscape and make a decision – to patent or to implement.

    To be clear, I am asking an honest question here – given today’s patent climate plus given recent examples of what clearly works (implementing your software idea) vs what clearly doesn’t (patenting your software idea) – why would anyone bother with choosing the patent route? Monetary outcomes clearly favor building a startup over patenting and licensing to a tech corporation.

    I suspect that if there is a fairy tale, it’s that of a software developer post-2014 ever benefiting from their software patent.

  9. SoftwareForTheWin September 26, 2014 6:27 pm

    Oh, and I forgot to mention one thing – the time to profit factor. Example #1 took less than 3 years, while #2 took 7 or 8 years, while #3 took less than 5 years. Yet the typical software patent by a small entity takes well over 5 years to issue PLUS the time after that to profit from (I don’t have the numbers but from what I gather this often happens near the end of the patent term).

    So we’re talking making profits in a few years from implementation vs making smaller profits after 16 or 17 years near the end of the patent.

    Be honest, if you were in the same shoes, would you choose to patent over implementing?

  10. MaxDrei September 26, 2014 6:54 pm

    Here is some evidence:

    http://web.archive.org/web/20010603214114/www.patent.gov.uk/about/consultations/conclusions.htm

    which suggests that the benefits to Innovation that are brought by patents on Software and Business methods are less certain than you might suppose.

    I am reminded of the speech in the House of Commons about 100 years ago, when the Prime Minister declared himself more than willing to consider any evidence at all, so long as it supported the decision he had just announced. Then there is the well-known “confirmation bias” and don’t forget the well-known risk factor in heart disease, namely, having English as your first language.

  11. SoftwareForTheWin September 26, 2014 7:04 pm

    MaxDrei:

    1) that’s a 2001 article – the landscape has drastically changed (not just startup world but also the patent landscape)
    2) there’s a lot of noise in that article – but my question still holds – what is the incentive for a software developer with an idea choose patenting route over going full speed startup route?

  12. SoftwareForTheWin September 26, 2014 7:19 pm

    A software developer has much more control and visibility into his/her implementation than the complete uncertainty from going the patent route.

    By writing the code, I can much more accurately predict the future – whereas the patent route is filled with hopeless uncertainty and changes. Examples:
    -PTAB death squad,
    -AIA,
    -an Alice coming down the road after patent prosecution is complete and patent issues,
    -infringer workaround,
    -infringer dragging small patentee thru courts for years,
    -Akamai-Limelight and infringer avoiding infringement by splitting operations up to separate entities,
    -Ebay and FTC not upholding blocking of competitors,
    -patent lawyer making one-word mistake during patent prosecution later to be held against patentee during infringement trial
    -etc…

    Seriously, for any software developer, the patent route is completely out of the question. It’s a no brainer. It’s much more of a no brainer than even a few years ago. I’ll take my chances with a competitor copying and iterating to stay ahead of them over the uncertainty of patents.

  13. Gene Quinn September 26, 2014 8:40 pm

    SoftwareForTheWin-

    Thanks for the comment! Seriously, I cannot thank you enough because you prove the point that those who despite software patents are just plain ignorant of the facts.

    Twitter, Apple, Facebook, Google and Priceline were all built on patents. So when you say that Twitter did not rely on patents you demonstrate that you are just not familiar with the topic and your research skills are woefully inadequate.

    Twitter was founded on March 21, 2006, and the company went public on November 7, 2013. Many  incorrectly believed that Twitter’s initial stance on patents was that they didn’t matter, but behind the scenes Twitter was actively filing patents very early on in the development of the company. This is hardly shocking news given that Twitter’s initial round of funding dated back to 2007 and the near universal reality that high-tech investors not only love patents, but they demand patents.

    In any event, on March 18, 2013, Twitter was issued a patent on tweeting, U.S. Patent No. 8,401,009, but the patent application was filed on July 22, 2008. Twitter also obtained U.S. Patent No. 8,448,084, which issued on May 21, 2013, on an application filed April 8, 2010. Thus, before Twitter went public it had long since filed patent applications and obtained core patents.

    Shortly after going public Twitter acquired 900 patents from IBM. Given that the acquisition was announced only 2 months after going public it is certain that the acquisition was well underway prior to Twitter going public and that the institutional investors were apprised of that fact while doing due diligence.

    Nice try, but you really need to arm yourself with facts rather than superstition.

    -Gene

  14. Gene Quinn September 26, 2014 8:42 pm

    “what is the incentive for a software developer with an idea choose patenting route over going full speed startup route?”

    If you do not get a software patent then getting funding will be more difficult than it already is if not completely impossible. The facts speak for themselves. Facebook, Twitter, Apple, Google and Priceline were all built on patent portfolios. Microsoft once took the position they didn’t need patents until they got sued and by the mid 1990s they were a patenting machine.

    It is extremely foolish to look at all the companies in Silicon Valley that succeed because of their patent portfolios and then conclude that you should follow another path.

  15. wow September 26, 2014 9:53 pm

    Without IP (especially patent) protection any software products would have zero value because the products can be freely copied by competitors. How can you make money and create jobs when your key assets have zero value and your business generates zero revenue from your worthless products?

  16. Pro Se September 27, 2014 7:06 am

    A great example why patent rights are important for a strong economy was just demonstrated: Alibaba sells smartphones and many other products that disrespect American IP rights, mostly Google Android devices. Alibaba grew in Chibs and just had the biggest American IPO of all time.

    Now, Alibaba is a huge American settled competitor to Google.

    Had Apple and Microsoft been given the power to stop Android with patents, that growth would have likely not allowed Alibaba to IPO in America.

    I give it 10 years before we hear Alibaba group is buying Google.

  17. Pro Se September 27, 2014 7:08 am

    *Chibs=China

  18. AP September 27, 2014 8:41 am

    Gene,
    I generally agree with your post, but I wouldn’t go so far as to say all investment in innovation would cease. It would be more accurate to say most private investment in innovation would cease.
    What would stay? Government innovation. Innovation by non-profits and idealists (e.g. open source). And innovation by those who can recoup the costs of innovation in other ways, i.e. primarily big monopolists (Google, AT&T in the past, etc.), and secondarily those in fast-moving fields (e.g. Snapchat).
    This partly explains why the big monopolists like Google don’t want strong patents. They’d be fine without them, and, even better, without patents they’d have a reduced chance that their monopoly will be disrupted by a startup. Take out patents, and you reduce private investment in innovation that might disrupt Google.
    So a more complicated but more accurate way to rephrase your comment is that private investment in innovation would go down overall, and would all but disappear for non-monopolists and fields where innovation takes time.

  19. AP September 27, 2014 8:47 am

    And to put in terms of Peter Thiel’s saying that “We wanted flying cars, and we got 140 characters,” without patents you’d have more “140 characters” and no flying cars except those made by Google.

  20. Mark Nowotarski September 27, 2014 10:50 am

    Gene @13

    Thanks for the reference to Twitter’s 8401009 patent. That patent actually claims priority to a provisional filed on 7/23/07. The filing date and the contents of the provisional provide several great lessons for other software inventors.

    Twitter’s first big breakthrough was at SXSW in March of 2007 https://en.wikipedia.org/wiki/Twitter. So I’m going to speculate that once Jack Dorsey (the inventor) realized he had a valuable invention at SXSW, he went to a patent agent/attorney to protect it. The provisional itself has handwritten drawings which is just fine. No need to spend money of formal drawings at this stage. There is also an appendix with a great deal of technical detail on Twitter’s API. Technical detail is essential for getting strong software patents. This is particularly true now that the Alice decision has made it very clear that abstract ideas alone won’t get you a patent.

    There is a cautionary tale in the filing date, 7/23/07. Twitter was originally released to the public just over a year earlier on 7/15/06 http://techcrunch.com/2006/07/15/is-twttr-interesting/ Since that release was more than a year before the patent filing date, then everything in the initial release counts as prior art. Twitter could only patent improvements over the original version. That may be fine, especially if the software radically changed, but software inventors should keep careful track of when they first publicly release their products so that they can get their patent applications on file before that critical one year “bar date”.

  21. Mark Nowotarski September 27, 2014 10:54 am

    Pro Se @16 I respectfully disagree with “Alibaba … disrespect American IP rights” Alibaba is very good at respecting IP rights. Our experience has been that if you see an infringing device and you notify Alibaba, they will take it down.

  22. Mark Nowotarski September 27, 2014 11:01 am

    Also, for what it’s worth, Alibaba has a very extensive worldwide patent portfolio.

  23. Gene Quinn September 27, 2014 12:28 pm

    AP-

    Agreed. We would lose much, if not all, of the private sector except for the idealists. Well put.

    -Gene

  24. SadPanda September 27, 2014 2:09 pm

    @Gene

    I believe your argument then, with regards to responding to SoftwareForTheWin, is that the patent is valuable because it brings in funding.

    The issue with this is that, with regards to innovating new entitities, it means the patent is not really of any value other than to (A) convince investors to give you money, and (B) to a much lesser extent, act as a defensive armament against other smaller start ups (it would not be worth much defensively against a larger, more well armed and funded entrenched player).

    To me then, it sounds as if SFTW has it mostly correct, but is discounting the ‘patent tax’ on getting investment. In other words, for the start ups, the value of the patent isn’t in the patent itself, it’s in the fact the patent is being used as a signal to investors that they should dump money into the start up.

    I would liken that to some of the college courses I took when I was in college. I was required to take library science 101 before I could graduate. It didn’t really give me any viable knowledge, it cost me money, and I never used it afterwards, but I it was a ‘butt in desk’ tax I was required to pay in order to graduate.

    So, the question becomes, what did investors use as a yardstick on who to invest in before software patents were allowed?

    Your stance is, if investors become convinced that software patents are worthless, they will not invest in software. Considering investors did invest in software prior to software patents (or else we wouldn’t have Microsoft, for example), then I think that may be an overly pessimistic assumption. I think what you may see is a period of investors pulling back on software startups. But it will be until they come up with a new yardstick. One of the universal constants of humans is greed. Investors want to make money, they just want to have a warm and fuzzy that they are going to make some. Given the number of failed start ups for each successful startup (and those failed start ups had patents too), it is more likely that investors will fixate upon a different ‘security blanket’ than what they use now. What that security blanket will be, remains to be seen…

  25. Vance Proust September 27, 2014 2:17 pm

    Why aren’t market incentives sufficient? Why do you distrust competition?

  26. Benny September 28, 2014 2:18 am

    While patents protect innovation, I wouldn’t assume that all patents represent innovation. Bolt device A to device B with a couple of self-tapping screws, and use device B’s public documentation to get it to work, and you can get a patent for your insignificant effort (I can provide examples), but no self respecting engineer would call that innovation. These kind of patents are not used to reward innovation (because the innovation is trivial), they are used to stifle competition. Anon, don’t give me that lecture again about patents being a legal device divorced from engineering. I’ve heard it before and I’m not convinced.

  27. Anon September 28, 2014 9:22 am

    Benny,

    Whether you are convinced or not is not the be all and end all of innovation.

    As for systems for rewarding and promoting innovation, think parking lot – not street.

    The plain fact of the matter is that innovation is not a linear process and that sub-par engineering items can be – and often are – the foundations of fantastic innovation. Such examples as the sticky note and the whole class of erectile dysfunction drugs come directly from what you would call poor engineering.

    Your hubris is your undoing – that is a lecture that you should pay attention to.

  28. Benny September 28, 2014 9:30 am

    Anon,
    I was thinking more in the terms of “add a radio to it – apply for a patent” type of application, as in US6662945, for example (and I could provide more real-life examples). This may pass for innovation in your book, but I have different standards. I would like to think that the USPTO has higher standards, too, but many patent publications prove that the bar is set low.

  29. Gene Quinn September 28, 2014 10:38 am

    Vance-

    Nothing to do with distrusting competition. Only someone who is intellectually dishonest would ever suggest such a thing.

    There is no reason for investors to pour in hundreds of millions or billions of dollars when what they create could be copied with impunity immediately. That should be self evident to anyone. Please try and wise up and get a clue.

    -Gene

  30. Gene Quinn September 28, 2014 10:44 am

    SadPanda-

    You say: “To me then, it sounds as if SFTW has it mostly correct…”

    Then you are just as ignorant as he is.

    You say: “Considering investors did invest in software prior to software patents…”

    And that is a lie. Simply not true. Software has been patented since 1965. Even someone who is intellectually dishonest like yourself has to admit that the tech industry is VERY different today than before software patents. It is also VERY different compared to when software patents started to first become more commonplace in the early 1980s. Those are facts, so why you choose to ignore truth is beyond me.

    Apple, Facebook, Twitter, Google, Priceline and SO many other companies have been built on software patents. There is no way to argue this point unless you choose to ignore fact.

    Of course, if you are talking about software companies that make plugins that don’t work, or those who code things and then fail to support them, or software that is created and then not updated, or apps, you would be correct. That type of clearly inferior software that has numerous security vulnerabilities and doesn’t work very well has been created without regard to patents. Those things that don’t work, won’t be supported and are malicious in nature aren’t patented though. So if you want to talk about commercially viable software then you are, of course, wrong.

    For goodness sakes, even Red Hat has a huge patent portfolio! When will you and others take your head out of the sand and grow up? There is no virtue to being consistently wrong and ignoring the truth. It is because you ignore the plain and undisputed truth that referring to you as ignorant is purely descriptive.

    -Gene

  31. Benny September 28, 2014 11:02 am

    Gene at 29,
    Investors should also ask themselves, 1)what is the cost of enforcing a patent against competitors, taking into account the very real risk of having my patent narrowed or invalidated in the process, and 2)how does that compare to profits lost to imitators, taking into account the fact that they will almost always be one product generation behind me?
    It won’t always work out the way you expect. In that respect, the patent serves only as a deterrent – and you have to be known to have used your deterrent power at least once to be credible.

  32. Anon September 28, 2014 11:27 am

    Benny,

    It is unclear which “bar” you want to talk about as too low, as your refrain of “stick a radio on it”sounds properly in the realm of obviousness doctrine.

    You make an unsubstantiated leap in your attempt to lob an insult at me with “passes for innovation in my book.”

    Before you make that leap, do you understand what I actually posted? Or in your haste, did you not bother at all?

  33. Anon September 28, 2014 11:33 am

    Benny,

    Your comment at 31 is closer to being something that can be discussed.

    You have a valid point that enforcement costs should be discussed with clients prior to engaging the patent system.

    But your comment of “almost always be one product generation behind me” is pure fallacy. Study innovation and you will see why. Your view is far too linear, and ignores reality.Not only does innovation NOT follow a pure generation after generation model, there is no guarantee whatsoever that the leader of one generation will be the leader of the next. AT BEST (and this notion is not always even significant), you may have a first mover advantage with the immediate generation.

  34. Benny September 29, 2014 2:44 am

    Anon,
    The “bar” is in fact, as you pointed out, obviousness. Gene posted an article recently about patents similar to the one I gave in my example, which really are not worthy of grant. As such, to assume that each and every granted patent must represent innovation is a leap too far.

    My comment at 31 accurately reflects the reality in my own field, in which most patents are of the “knurled flange bracket” rather than software, variety. Our market IS linear. It is not true for market disruptive technologies, but those are the exception rather than the rule.

  35. MaxDrei September 29, 2014 3:54 am

    Everywhere one looks, the message that comes back is always the same, that engineering success does not come only from the initial breakthrough but from the follow-on never-ending “tweaking”.

    I see above the same tired old litany that without patents there would be no investment and so no tweaking and so no success.

    I’m in favour of patents for engineering tweaks. I realise though, that a great deal of patient explanation is needed, to persuade lay people that patents on tweaks do indeed foster engineering innovation.

    But I’m not in favour of patents on tweaks in the field of organising human activity, you know, business methods. The only reason that organisations like banks and traders are building ever-higher piles of patents is that an “arms race” has been going on, initiated by the Federal Circuit’s State Street Decision. See the Link I gave you, at # 10 above.

    I think a lot of people can make a lot of money from such an arms race. Mostly patent attorneys.

    Remember mutual assured destruction? You need at least as many missiles as the other guy.

    But in business methods, I think we now may be past that interlocutory period, of waiting for SCOTUS to make up its mind. It’s done that now.

  36. Benny September 29, 2014 4:05 am

    MaxDrei,
    I would add to your tale of engineering tweaks that in half of the cases (at least) the tweaked product is on the market and generating profit before the final rejection on the patent application comes in from the patent office. (Not so, apparently, in France, where I could just about re-patent the wheel in 6 months)

  37. MaxDrei September 29, 2014 6:40 am

    Benny in France they make no pretence of examining on the merits. Just ask and you get. The presumption of validity there is not what it is in the USA though.

    In Europe, you pays your money and you takes your choice, EPO or national route. Or both.

  38. Curious September 29, 2014 11:54 am

    This may pass for innovation in your book, but I have different standards. I would like to think that the USPTO has higher standards, too, but many patent publications prove that the bar is set low.

    As a patent attorney, I intentionally avoid passing judgment on the relative subjective merit of an invention. I’ve seem some seemingly innocuous stuff take off and become foundational technology for a wide range of products, and I’ve seen what looks like ground-breaking stuff go absolutely nowhere. Sometimes, however, you won’t know which direction an invention will take until 10 years or more down the road. Thus, it is way too early for the USPTO to pass judgment on the “merit” of an invention only 2 or 3 years after filing.

    Regardless, there is no “merit” requirement to obtain a patent. It doesn’t have to be a good or great idea. It can be a terrible idea. All it has to do is be useful, novel, and nonobvious. The reward isn’t so much for “innovation” but for disclosure. We want to encourage disclosure. For example, that terrible idea may have been the poor application of a great insight, and other people can take this great insight and apply it elsewhere.

    Moreover, there have been several quotes by famous inventors that are all pretty much directed to this idea: if you want to have good ideas, you need to have a lot of ideas. The lesson is that inventing is trial and error (with a lot of error). If the system harshly judges inventors’ inventions with less merit, we discourage these inventors from producing inventions with greater merit.

    I don’t worry about the patent system giving out patents to what I’ll call “silly” inventions (i.e., inventions that nobody practices or that can be easily designed around). Patents on these types of inventions don’t hurt anybody.

  39. Curious September 29, 2014 12:00 pm

    But I’m not in favour of patents on tweaks in the field of organising human activity, you know, business methods.
    Why? There is a lot of research and science involved in the areas of finance, advertising, and sales.

    But in business methods, I think we now may be past that interlocutory period, of waiting for SCOTUS to make up its mind. It’s done that now.
    Why is it that the anti-software patent folks (including many Federal judges) forget that 3 is less than the 4 in Bilski and not 5? Regardless, whether or not business methods should be patentable or not is a POLICY decision to be made by Congress, not SCOTUS.

  40. Anon September 29, 2014 12:44 pm

    Well stated Curious – I realize that I am preaching to the choir, but you do get why the patent system exists.

  41. Mark Nowotarski September 29, 2014 1:20 pm

    As a patent attorney, I intentionally avoid passing judgment…

    Curious@38: This is an excellent point. The market is the proper judge of an invention’s merits.

  42. Curious September 29, 2014 1:29 pm

    The market is the proper judge of an invention’s merits.
    That is the perfect way of putting it.

    It is also one reason why I don’t believe a system of the government directly rewarding inventors (instead of indirectly rewarding as the current system does) should replace the current system. The market is better positioned to place the correct value on the worth of an invention/patent.

  43. SadPanda September 29, 2014 3:07 pm

    @Gene

    I find it odd that you direct personal attacks at anyone who doesn’t agree with you 100%. Calling me intellectually dishonest is a personal attack on me. If someone were to post to you that you were emotionally unstable, or that your arguments were self-servingly dishonest, you would declare that a personal attack and then ban that person.

    I see no reason to even read the response past that personal attack. It’s your forum, you can break your own rules, obviously. But I see no reason to continue reading your forum when it’s become obvious that anyone who doesn’t agree with you deserves (in your eyes) only personal attacks and insults.

  44. Gene Quinn September 29, 2014 4:12 pm

    SadPanda-

    Calling you and others ignorant is not at all a personal attack. It is purely descriptive. The term ignorant means “lacking knowledge or information.” Those who believe as you do are by definition ignorant.

    Saying that you are intellectually dishonest is equally descriptive. If you don’t want me to say that then stop being intellectually dishonest. You said that investors invested in software before software patents, and that is simply not true. If you had engaged in any kind of basic research or verification you would have known that. So you either made that statement with careless disregard for the truth, or it is intellectually dishonest. Software was first patented in 1965 on an application filed before that. So to say that investors invested prior to software patents is historically and factually untrue. It ignores the reality that the software patents came into being at the beginning of the earliest part of the software industry. This is not debatable, it is true.

    I’m sorry that you feel my accurate characterization of you and others is a personal attack. Of course, it is not a personal attack. It is purely descriptive. My suggestion would be to stop taking clearly erroneous positions, making specious arguments and actually discuss reality rather than the fiction you spew as fact.

    -Gene

  45. Benny September 30, 2014 1:53 am

    Curious at 38,
    Of course you are correct in your statement about patents that ” All it has to do is be useful, novel, and nonobvious.” . My point is that this description does not necessarily equate to the definition of “innovation”. Perhaps you have the fortune of only working with serious R&D teams who patent cutting edge research, in my field design teams are patenting things like hose clips.

    As for silly patents hurting no-one, they hurt the bank account af the applicant and waste the USPTO’s time, which is bad news for filers of serious applications. How much time and money was wasted on US8159357? Simply proving infringement would be a fascinating (if impossible) exercise.

  46. Mark Nowotarski September 30, 2014 4:39 am

    How much time and money was wasted on US8159357? Not a lot. It was filed pro se (i.e. without an attorney/agent)

  47. Curious September 30, 2014 11:26 am

    As for silly patents hurting no-one, they hurt the bank account af the applicant and waste the USPTO’s time, which is bad news for filers of serious applications. How much time and money was wasted on US8159357? Simply proving infringement would be a fascinating (if impossible) exercise.
    A guy spends his money on a $500K super car that he never drives — should he be prevented from doing so?

  48. Benny October 1, 2014 1:59 am

    Curious,
    The EPO does more to discourage foolish patent applications from clogging up the offices’ backlog by charging maintenance fees before examination. The USPTO should be acting in the interest of genuine inventors and actively discourage frivolous applications which are holding back everyone else. Instead, they write 19 page rejection letters to crackpots who attempt to patent time machines (US20090234788 file wrapper). Could the examiners’ time be better spent ? You don’t see this sort of comedy in the EP register. Your analogy to the sports car is inaccurate – you should ask, should the sports car owner be allowed to block traffic with his toy?

  49. Anon October 1, 2014 9:54 am

    Benny, you continue on your “path” in the weeds…

    “Clogging up” is FUD
    “genuine inventors” is hubris
    It is not the role of the patent office to discourage “frivolous applications” (especially since the proper model is “parking lot” rather than “street” and today’s “frivolous” may be the crucial piece of tomorrow’s not-so-frivolous.

    You continue to exhibit a too-linear thinking towards innovation that simply does not accord with reality. You need to do some reading on Christensen and note that the great leaps forward OFTEN are started with innovations that actually appear to be step backs.

  50. Benny October 1, 2014 10:46 am

    Anon,
    You didn’t actually look up the reference I cited, did you? I could fill a book with those sort of applications. How about 12/184229? Or 11/322309? Innovation, it it? There is another word for it. Tell me why the USPTO should spend more than 5 minutes on these examples of “innovation”.

  51. Anon October 1, 2014 10:54 am

    Benny,

    A single reference proves nothing.

    You are wasting my time and perhaps (given your hubris) more importantly, your time.

  52. Benny October 1, 2014 10:58 am

    Anon,
    I provided 3 references. Theres lots more where those came from. How many do you want? Yes , I don’t need to be told that the plural of anecdote is not data.

  53. Anon October 1, 2014 12:06 pm

    You say that you do not need to be told – and persist to act like you do need to be told….

    Your hubris is your downfall.

    Still.

    You really need to read and understand what I am telling you: innovation often does not appear as the “worthwhile” engineering that you would limit patents to in your “perfect” world. I have managed engineers like you in the past – and the phrase that comes to mind is “too smart for your own good.” You insist on speaking about something that you truly do not understand, and have the hubris to think that what you do understand can make up the difference.

  54. Curious October 2, 2014 1:00 am

    Tell me why the USPTO should spend more than 5 minutes on these examples of “innovation”.
    Without looking at any of the applications, I am 100% sure there have been instances where people have tried to patent something that the Examiner says to himself/herself, “that’s impossible!!” — except the applicant really did it. As such, don’t be too quick to scoff at somebody’s idea.

    Regardless, I believe the USPTO has the ability to request a working model under 37 CFR 1.91(b).

    Also, not sure where I posted it, but I am again reminded of quotes from famous inventors — which paraphrased goes something like this: “the key to have good inventions is to have a lot of inventions.” The point being is that a lot of inventions never go anywhere, but that should prevent somebody from getting a patent on it. Perhaps the problem that kept the invention from being commercially viable will be solved in 10 years?

    While I may personally like/dislike some inventions, I try very hard to not let my personal feelings impact the job I’m being paid to do.

  55. Benny October 2, 2014 1:41 am

    Curious,
    you tell me …”Without looking at any of the applications…”.
    The first application I cited was for a time machine. For time travel. You appear hesitant to scoff at such ideas, perhaps your science education was more thorough than mine.

  56. Mark Nowotarski October 2, 2014 12:00 pm

    Benny @55: I did look at the file wrapper for US 2009-0234788 A1 “Practical Time Machine Using Dynamic Efficient Virtual And Real Robots” and it seemed to me that examiner time was well spent. The examiner saw that the case was filed pro se and strongly recommended that the applicant get an attorney/agent. The examiner then went on to reject the claims under 101 as being inoperable “Claims 1-20 denote the use of several different mechanisms which lack credibility…” Finally, the examiner rejected the claims under 112 as failing to clearly describe the invention and pointed out to the applicant where the confusion lay.

    Isn’t this exactly what an examiner is supposed to do?

  57. Benny October 2, 2014 3:05 pm

    Mark,
    Is this exactly what an examiner is supposed to do? In almost all cases, yes, but in the example I gave it would suffice to read the abstract and the first claim to gain a clear understanding of what you have in hand, and to advise the applicant – in no more than two words – to take up self-taxidermy. The fact that the examiner of application US20100230508 objected to the use of profanity in the specification proves that he actually read it, an entirely unnecessary exercise before issuing a rejection in this case.

  58. Curious October 2, 2014 5:42 pm

    an entirely unnecessary exercise before issuing a rejection in this case
    I suggest you familiarize yourself with the concept of “due process of law.”

  59. Mark Nowotarski October 2, 2014 5:51 pm

    Benny,

    You have certainly found some interesting cases. I took a look at US20100230508 and the other cases in the family. Once again, I think the examiner did exactly what an examiner should do in a very difficult situation. He provided a professional office action that addressed the merits of the case.

  60. Inside informant October 6, 2014 7:23 pm

    I’m pretty sure that it is in the 4th year that engineering students make their own small OS (usually in a small group). As you stated, it is usually not 2nd year students doing that, though some outstanding students likely exist at 2nd year.

    “Assuming arguendo that apps are trivial to create”

    Could we also assume arguendo that patent applications describing a desired (usually completely abstract) computer app functionality are many orders of magnitude easier to create than a worthwhile computer app most of the time?

  61. Benny October 7, 2014 2:16 am

    Mark and Curious,
    I believe that the examiners’ opinion the of these applicants’ ranking among the sharp tools in the toolbox does not differ greatly from mine. Their response is a mere pretense of taking them seriously, known as “going through the motions”. It is not a gainful expenditure of resources.

    Inside @60 – apps are not trivial to create. Nor are patent applications, However, patent applications whose drafting, filing, and prosecution fees are in excess of any revenue the app they protect will generate are not beyond the wit of man.