Dueling Visions of the Patent System, Dueling Visions for America

By Joseph Allen
March 15, 2018

“We have two very different views of the patent system and innovation. One sees intellectual property ownership as a fundamental human right leading to national freedom, prosperity and better standards of living. The other sees innovation as an inherent threat, requiring increased government scrutiny of inventors to protect the public interest.”

Dueling Visions of the Patent System, Dueling Visions for AmericaThe article in IPWatchdog describing how the United States democratized the patent system, extending the right to own intellectual property to commoners, came to mind after reading two very different papers on patents, innovation and their impact on society.  Apparently the debate over the democratization of the patent system isn’t over.  Some still see inventors as potential threats to the social order requiring close government supervision. The competing perspectives on patenting are reflected in the prominent figures from English history each study cites.

Edmund Burke’s observation: “A law against property is a law against industry” appears in  “Property Rights: The Key to National Wealth and National Security” by Conservatives for Property Rights.

Technological Un/Employment”  by Camila Hrdy at the University of Akron School of Law takes another direction.  She applauds what happened to William Lee in 1589 when he approached Queen Elizabeth I, seeking a patent on his knitting machine.

“Thou aimest high, Master Lee.  Consider thou what the invention would do to my poor subjects. It would assuredly bring them ruin by depriving them of employment, thus making them beggars.” With that admonition, Lee along with his petition, was dismissed from the royal presence.

With just those hints, see if you can assign each of the quotes below to the correct paper:

  • “Exclusivity over the patent is important in order to compensate for the inventor’s time, costs, and investments.”
  • “As explained, denying an intellectual property right does not deny the right to use the technology. It just denies the exclusive right to do so.”
  • “When intellectual property rights are protected, innovators are able to recover the costs incurred in research, product development, and market development. This cost recovery justifies the risks associated with development of new technologies and products today and is essential for stimulating the future R&D that is necessary to maintain America’s competitive edge.”
  • “The upshot is that intellectual property magnifies the unequal distribution of returns between IP owners and IP-generators and everyone else.”
  • “America’s industrial base rose rapidly from a largely agrarian society of farm workshops.. to factories and manufacturing plants that attracted workers and raised standards of living through higher wages and better products. Much of this growth was dependent on patents… The commercialization of secure patents created the world’s leading industrialized nations…”
  • “Government would impose a tax– a required payment of cash into the public fisc (sic)– upon companies that decide to invent or adopt technologies that have an adverse impact on jobs. The tax would be imposed on two discrete groups: the businesses that adopt robots or other labor displacing innovations in the marketplace, or the owners of intellectual property rights in those labor displacing innovations.”

So we have two very different views of the patent system and innovation. One sees intellectual property ownership as a fundamental human right leading to national freedom, prosperity and better standards of living.  The other sees innovation as an inherent threat, requiring increased government scrutiny of inventors to protect the public interest.

The inspiration for the Conservatives for Property Rights’ study is President Reagan and how he reversed America’s slide into industrial irrelevance by fostering innovation, getting government out of the way of entrepreneurs as much as possible.  Professor Hrdy begins her paper quoting John Maynard Keynes: “We are being afflicted with a new disease of which some readers may not yet have heard the name, but of which they will hear a great deal in the years to come– namely, technological unemployment.”

Her remedy is for government to discourage inventions that could disrupt the labor market either by limiting their intellectual property protection or taxing them.  She leans toward taxing as resulting revenues could be used to retrain and compensate displaced workers.  Of course, the key question is who decides which technologies to target?  The answer is bureaucrats.

Thus, American inventors would assume the posture of our friend William Lee, bending low before their bettors asking for indulgence to own their inventions. And like Mr. Lee, they could get the boot for their presumption. You don’t have a right to property that’s only bestowed according to the whims of government officials. And you can bet that in such a system those in political favor will fare best.

In order for this scheme to work, we have to believe that government is pretty good at predicting the impact of specific technologies.  If there’s any basis for that faith, I haven’t seen it. Consciously or not, most of government’s efforts are to protect the status quo because those are the interests that are well represented in the system.  If you were pondering the future of the computer industry in the 1970’s you would call in IBM executives, all dressed alike in blue suits with white shirts and red ties.  Bill Gates and his band of geeky looking nerds wouldn’t get through security.

We can’t deny that there are real costs when disruptive technologies emerge. But history shows that rather than penalizing or discouraging them, nations which embrace and foster innovation wind up a lot better off than those which miss the wave and are left behind. No amount of government support can save an industry whose time has passed.

The  debate over the role of innovation and the role of government is much more than an academic exercise.  Each generation must weigh whether to value individual initiative or centralized control by elites. In the 1970’s the idea that centrally orchestrated economies like “Japan, Inc” were the wave of the future was much in vogue.  Many of the “best and brightest” gleefully crowed that the days of “cowboy entrepreneurs” were over.

But the American electorate had a different idea.  A massive wave of discontent swept Ronald Reagan into power.  Defying conventional wisdom, he chose the path of decentralized innovation, with government getting out of the way.  Congress had just passed the Bayh-Dole Act, which removed the management of federally funded inventions from Washington, placing it in the hands of universities and small businesses which were allowed to own their inventions.  In 1982, the creation of the Court of Appeals for the Federal Circuit restored confidence in the U.S. patent system. These along with other policies putting their faith in individuals rather than bureaucracy made the economy take off like a rocket. Soon America’s lead in every field of technology was restored.

But with success we began to forget the lessons of the past. Once again we allowed our patent system to degrade. Many are again enamored with ever expanding government. Our greatest competitor, China, rejected political freedom for a centrally planned economy run by those in power for life.  In our own country the debate over the size and nature of government and the rights of the individual has created a political chasm.

While I’m sure that Queen Elizabeth meant well, no one asked the people spending their lives knitting socks if they’d rather do something else.  When given the chance, “commoners” flock to places where they can control their own destiny. That’s why many of our ancestors left behind everything they had known in the Old World to gamble on a new life in the United States.  They fled societies where they were told by government what they could do, how far in life they could go, what they could own and last, but certainly not least, what they must believe.

While we should help those displaced by technology to develop new skills, penalizing inventors or having government tax innovations it doesn’t like couldn’t be more wrong-headed.

Queen Elizabeth didn’t preserve the manual sock knitting industry by denying Mr. Lee the right to own his invention. She merely delayed the inevitable.  Luckily, she was wiser in turning her English “sea dogs” loose on the Spanish Armada. They showed what entrepreneurs can do to those hamstrung by bureaucracy.  I don’t know about you, but I know which side I’m backing in that fight.  Sign me up with the sea dogs.

The Author

Joseph Allen

Joseph Allen is a Featured Contributor on IPWatchdog.com, and a 30-year veteran of national efforts to foster public/private sector commercialization partnerships, and author of numerous articles on technology management for national publications.

Joe served as a Professional Staff Member on the U.S. Senate Judiciary Committee with former Senator Birch Bayh (D-IN), and was instrumental in working behind the scenes to ensure passage of the historic Bayh-Dole Act. He is our resident Bayh-Dole expert, and will write frequently about Bayh-Dole and issues surrounding the commercialization of university research.

In 2008, Joe founded Allen & Associates, through which he offers consulting services assisting clients in technology transfer issues, including developing effective communication strategies with national policy makers.

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 54 Comments comments.

  1. Anon March 15, 2018 11:03 am

    Bravo.

  2. Anon2 March 15, 2018 11:20 am

    Ditto Anon@1

    &

    By way of analogy to somp’n some feller’ said about evil triumphing: “There ain’t no more cause fer bad ideas gettin’ purchase than sensible folks clammin’ up when they hears good sense a spoken’ ”

    and so while I applaud the eloquence, morality, and reason exhibited by this post, I encourage others, if they concur to “speak up” and applaud also.

    Well said!

  3. Josh Malone March 15, 2018 12:39 pm

    One view wants a reliable and predictable legal system for the benefit of all Americans as envisioned by the Founders and legislated in the 1952 Patent Act.

    The other side wants to hijack the Patent Act and turn it into a complex unpredictable legal system for the benefit of the elite.

    If patents are such the blight the latter side claims them to be, they should advocate for repeal of the Patent Act. But that would not be profitable for the elite.

  4. Edward Heller March 15, 2018 3:42 pm

    “Camila Hrdy at the University of Akron School of Law takes another direction. She applauds what happened to William Lee in 1589 when he approached Queen Elizabeth I, seeking a patent on his knitting machine.

    “Thou aimest high, Master Lee. Consider thou what the invention would do to my poor subjects. It would assuredly bring them ruin by depriving them of employment, thus making them beggars.” With that admonition, Lee along with his petition, was dismissed from the royal presence.”

    The left never stops trying to undermine the fundamentals of civilization. Never.

    Archaeologists have shown that Neanderthal had no concept of family, while Cro Mangon did. It was the family that allowed women to stay home and educate their children, and it provided an incentive for men to work hard invest that they pass their property on to their heirs. It is no wonder that Cro Magnon society advanced so rapidly relative to Neanderthal, and why the Neanderthal disappeared.

    And yet we have the like of “It takes a Village” being pushed by the left whose fundamental purpose is to make our modern society more like Neanderthals and less like Cro-Magnon. Without the family, all of us exist at the mercy of the state.

    Again, the left constantly attacks the fundamentals of civilization and they do so for a reason.

  5. Anon March 15, 2018 6:53 pm

    Again, the left constantly attacks the fundamentals of civilization and they do so for a reason.”

    This follows from your own view of “Might makes Right” Mr. Heller.

  6. Edward Heller March 15, 2018 8:17 pm

    anon, what is “my idea” of might makes right?

    I am saying that in order to be “free,” a man must be secure in his property and his family. That family, in turn, needs be secure and protected before they can undertake the fundamentals such as raising and educating children.

    It is the legitimate purpose of government to protect these rights. Without a government to so protect, the mighty can simply take what they want. A man must hide his movable, and he cannot invest in improving real property. Women are always at risk of bodily harm. Children grow up as best they can in an uncertain world.

    So, when governments act to take away or reduce the rights of property and family, they put the individual at the mercy of others and of the state.

    Look at China, for example, where the collective sells property (for development) that farmers have settled for generations, pocketing all the money and evicting the farmers and their families. This is hardly the social justice they self-proclaim it to be. It is the opposite.

  7. Anon March 15, 2018 9:08 pm

    anon, what is “my idea” of might makes right?

    Are you going to pretend that a conversation on this spanning literally tens of posts did not just happen?

    Are you going to pretend that your own current anti-deistic beliefs have prevented you from understanding how the concept of inalienable rights is part of the foundation of the US government system?

    It appears that you are attempting to move the needle back with your current post regarding “secure in property and family,” which was altogether NOT present in your prior renditions of what a “Right” meant.

    Shall we (again) visit what you have actually stated on the matter and contrast your past statements with what you seem to now be leaning towards?

  8. Tesia Thomas March 16, 2018 1:59 am

    Cell phones disrupted the employment of telephone operators. But added phone service positions, cell repair, apps making jobs, programming jobs, software engineering jobs.

    Modern medicine disrupted many homeopathic remedies, religious healers and whatnot were put out of jobs. But added doctors, nurses, prescription drugs, etc.

    Cars disrupted the employment of horses and buggies and the drivers. But added the aftermarket car parts, mechanics, etc jobs.

    The Internet disrupted the employment of newspapers and magazines. But, now there are more venues for advertisers and businesses and with a wider reach.

    Whoever doesn’t like technological disruption can go enjoy the perks of low technological and societal development like high infant mortality among having to walk everywhere and farm everything you’re going to eat by yourself.
    Because that disruption got us where we are today.

  9. Anon2 March 16, 2018 9:39 am

    Innovation is the enemy of existing inefficiencies. Every new tool that saved a person any measure of effort (magnitude and/or time) eliminated the equivalent waste that previously was being expended.

    Elimination of the inefficiency frees up a person to produce more value with the remainder. Alternatively it frees up a person to engage in leisure or entertainment.

    The extra person-hours freed up are either spent producing more value, or represent an opportunity to demand more of the leisure and entertainment market, in reality the saved inefficiencies make possible new opportunities both for production and consumption.

    Principled, intelligent, self-responsible people, pursue the most valuable use of their time, and when the inefficiencies of their previous activities are rectified, that person moves on to do more efficient work of higher value in the market.

    It merely requires a choice of industriousness over sloth, self-responsibility over apathy, self-investment over self-destruction. We cannot make force a person to love life, to choose self-improvement over cigarettes, exercise and productiveness over mindlessness, basic food and grooming over alcohol, or even so obvious and basic a decision as living within one’s means and thinking long range, but we can provide a just society, which encourages and allows innovation which makes all the opportunities possible.

  10. SmallInventor March 16, 2018 10:19 am

    Nobody has yet mentioned the PTAB, or the USPTO for that matter. The latter does a good job, with its examiners coping with unprecedented technological change, for individual inventors and the elite alike. Inevitably they will allow some patent applications to be allowed which shouldn’t be. The the courts are in place to deal with this and generally the system works well although it is expensive. The PTAB interferes with the judicial process and preempts many judicial decisions – many would argue incorrectly. The cost of prosecution then becomes even more expensive for the small inventor with the added cost of overturning the PTAB ruling.The raison d’etre for the generally obstructive PTAB escapes me, especially since it is part of the USPTO, whose existence is enshrined in the Constititution.

  11. angry dude March 16, 2018 12:16 pm

    SmallInventor @10

    “The raison d’etre for the generally obstructive PTAB escapes me, especially since it is part of the USPTO”

    Huh ???

    This whole structure (PTO granting patents and PTAB canceling them later on at 1000% of the initial cost to inventor) was carefully conceived and financed by google and their (bi-partisan) friends in congress, scotus and obama’s white house
    all in the name of innovation, of course

    what is so difficult to grasp here ?

  12. SmallInventor March 16, 2018 12:32 pm

    Thanks for the explanation angry dude – scotus now has the opportunity to do something about this. I hope they will take it.

  13. Joachim Martillo March 16, 2018 1:15 pm

    I glanced at Professor Camilla Hrdy’s article Technological Un/Employment”. Her POV is rather more nuanced than this blog post suggests. I will read her full article after I run some errands.

    Acemoglu and Robinson’s Why Nations Fail: The Origins of Power, Prosperity, and Poverty provides a story of even more negative treatment of an inventor.

    The Emperor Tiberius had an inventor of unbreakable glass dragged way and executed “lest gold be reduced to the value of mud.”

    I put the following comment on the Patently-O article entitled Hrdy: A Response to ‘Innovation Kills Jobs’.
    ———————————–
    Kurt Vonnegut published
    Player Piano in 1952.

    I remember the following dialog.

    “All right,” he said at last, “I think maybe we’re all right now. Let’s try to make it to the police station. We can get protection there until this thing plays itself out.”

    The [limo] driver leaned on the steering wheel and stretched insolently. “You think you’ve been watching a football game or something? You think maybe everything’s going to be just the way it was before?”

    “I don’t know what’s going on, and neither do you. Now, drive to the police station, do you understand?” said Halyard.

    “You think you can order me around, just because you’ve got a Ph.D. and I’ve got nothing but a B.S.?”

    “Do as he says,” hissed Khashdrahr, placing the point of his knife in the back of the driver’s neck again.

    The limousine moved down the littered, now-deserted streets toward the headquarters of Ilium’s keepers of the peace.

    ———————————–
    The full version of Malthus’ An Essay on the Principle of Populationfirst appeared in 1803.

    I have digressed.

    To bring the point back to the present, we need some awareness that current artificial intelligence is hyped just as Vonnegut hyped the automation crisis and Malthus hyped the population crisis. I call artificial intelligence Poorly Simulated Intelligence (PSI for pseudes, i.e., phony). Current artificial intelligence simply isn’t going to cause massive unemployment even if the some small number of types of jobs go extinct like buggy-whip making.

    [There are, in fact, probably some buggy-whip makers in Pennsylvania and elsewhere.]

  14. A Rational Person March 16, 2018 1:56 pm

    Ed@4

    Since you are in favor of protecting the family, I assume you are in favor of universal healthcare?

    Or are you in favor of allowing families to be bankrupted, lose their homes, etc. because of their inability to handle healthcare costs?

    Regarding your comment: “Again, the left constantly attacks the fundamentals of civilization and they do so for a reason.”

    I would be interested in hearing why you thoughts on why ending slavery, prohibiting child labor, etc. advocated by the left attacked the “the fundamentals of civilization.”

  15. Edward Heller March 16, 2018 2:12 pm

    A rational@13: Re: medical costs: Insurance.

    The “left” did not attack slavery. That was a religious movement and the left despises religion. Look at what happened in Paris in 1792.

    Child labor? What has this to do with the left? Child labor is abhorrent to all.

    And, do not get me started on labor. Unions are necessary to equalize bargaining power and are an aspect of freedom. The real leftist hates unions. Just see the USSR, China, etc., where unions are organs of the party and are a mean to suppress labor.

  16. Edward Heller March 16, 2018 2:33 pm

    And, might I add, that many unions in the US are little better than arms of the Democrat Party.

    Further, the left’s idea of health insurance is to take over medicine entirely placing one at the mercy of the state. See how that went in Germany in the ’30s and ’40s.

  17. A Rational Person March 16, 2018 2:53 pm

    Edward@14

    “Re: medical costs: Insurance.” Sorry, have had two parents who suffered dementia who had long-term care medical insurance, still not enough to cover all costs. We were a relatively rich family so my parents could save enough money to cover the difference, but (1) most families cannot afford long-term care medical insurance and (2) most families would be bankrupted if they had to cover the kinds of costs I’ve seen with my parents.

    “Child labor? What has this to do with the left? Child labor is abhorrent to all.” Child labor laws were advocated by the Left and opposed by the Right in the early to mid-20th century.

    “The ‘left’ did not attack slavery. That was a religious movement and the left despises religion. Look at what happened in Paris in 1792.”

    Sorry again, in the antebellum South, most White Baptists, Methodists and Presbyterians has no problem with slavery. The Republican Party, the pro-big government, progressive party of the mid-19th Century is the group that eventually ended slavery in the U.S.

  18. A Rational Person March 16, 2018 3:03 pm

    Edward@15,

    “Further, the left’s idea of health insurance is to take over medicine entirely placing one at the mercy of the state. See how that went in Germany in the ’30s and ’40s.”

    Have you ever taken care of a family member with a long-term illness? Have you ever helped out one of your friend or co-workers who have a family member with a long-term illness?

    If you haven’t, stop talking about what “the left’s idea of health insurance is,” because you have not idea what everyone on the left’s idea of health insurance is. Some people on the left don’t like the idea of families being bankrupted and destroyed by the costs of healthcare. My family was lucky, my parents planned ahead and had the money to cushion the costs of healthcare. But, looking at my parents healthcare costs, I could readily imagine those costs bankrupting many American families.

    Some people on the left may just have a sense of morality and human decency that may be missing from some people on the right.

  19. Anon2 March 16, 2018 3:13 pm

    A Rational Person @17

    “Some people on the left may just have a sense of morality and human decency that may be missing from some people on the right.”

    What you are referring to is your belief in the “right to enslave” some people for the benefit of other people. It is the endorsement of enforcing “From each according to his ability, to each according to his needs”. This is not to be confused with either morality or human decency.

  20. Joachim Martillo March 16, 2018 3:27 pm

    My first interest in college was history — not so much American history as Eastern European and Jewish historical political economics, but I know enough American history to realize that each side was convinced God was on its side.

    Redeemers, who are still with us even if they no longer use that Christian religion-inspired name, were convinced that they were doing God’s will as they destroyed Reconstruction and murdered free men and women of color, freedmen, carpetbaggers (Northerners that immigrated into the South), and Scallywags (Southern Unionists).

    Lincoln, who was himself an inventor and supported the US patent system, was an agnostic famous for saying. “My concern is not whether God is on our side; my greatest concern is to be on God’s side, for God is always right.”

    The Patent Office seems to have been uncomfortable with slavery. Pre-AIA 35 USC § 102 (f) seems to originate in the unwillingness of the PO — it wasn’t PTO back then — to allow slave owners to steal the inventiveness and the inventorship of slaves.

    A person shall be entitled to a patent unless –

    (f) he did not himself invent the subject matter sought to be patented.

  21. Edward Heller March 16, 2018 3:47 pm

    A rational, there is a difference between state takeover of healthcare and insurance, even if subsidized by the state. I see nothing wrong in the state providing assistance to the needy to purchase adequate healthcare. But the left uses bait and switch tactics to achieve it ultimate goal: state healthcare.

    The anti-slavery movement was a Whig movement coming out of England and it was religiously based. Ditto the long movement to give slaves and the poor more rights in the Roman Empire. That all came from Christians.

    I agree that the Republican Party of Lincoln was a federalist party that sought to limit state rights. It forged a nation out of group of states who really didn’t like each other. Today’s Republican party seems to have a contrary view. But the balance is relative, and the thinking of Jefferson is still relevant: the best government is the least government, and matters should be localized as much as possible. This is entirely contrary to the thinking of the left.

  22. Edward Heller March 16, 2018 3:54 pm

    Joachim, I personally do not believe that one has to believe in God to understand such things as killing another human is murder, that stealing property is wrong, etc. This is where I part company with Locke and Jefferson, even while agreeing that free men form governments to protect life, liberty and property. The leftist’s impulse is always destructive of these basic rights, especially, the right of property.

  23. A Rational Person March 16, 2018 4:41 pm

    Edward@20

    Unless you are claiming that majority of slaveholders in the South were Atheists, Slavery in the South pretty much came from the Christians. Christians were split on the issue of slavery.

  24. A Rational Person March 16, 2018 4:43 pm

    Edward@21,

    Bringing this discussion back to patent law:

    “The leftist’s impulse is always destructive of these basic rights, especially, the right of property.”

    Then I take it you consider yourself a “leftist” because you have argued that people who invent new software inventions should not be able to protect their inventions using patents and instead should allow large companies to steal their inventions?

  25. Edward Heller March 16, 2018 4:49 pm

    A rational, I will accept what you say about the South. I simply have a hard time understanding just how any religion could justify behaving inhumanely.

    Regarding software, you do know that I favor patents on software that improve the operations of machines. What I do not favor are patents on business methods where the software involved is little different than “do it on a computer.” Many times the inventors behind these patents have never coded one line of software in their lives. Such are not “software” inventions.

  26. A Rational Person March 16, 2018 5:16 pm

    Edward@24

    Thanks. What I was mainly reacting to was your asserting proposition that the “left” is anti-religion and that the “right” has the moral high ground. Although I have some positions considered “leftist” and other positions considered “rightist” I have taught Sunday School and served on the Board of Trustees at my church and have served with other Sunday School teachers and Church trustees who you might consider to be on the “left” but were very deeply religious. So I react strongly to anyone who asserts that the “left” are “anti-religion.”

    “What I do not favor are patents on business methods where the software involved is little different than “do it on a computer.””

    But shouldn’t that be a Section 103 issue, i.e., is the method that is performed on a machine obvious in light of how the method is performed manually?

    “Many times the inventors behind these patents have never coded one line of software in their lives. Such are not ‘software’ inventions.”

    And isn’t this really a Section 112 enablement and written description issue? Personally, I would be in favor of a requirement for inventions that are at least partially implemented in software, that the inventor be required to submit code that could be used to implement at least one embodiment of the claimed invention. To me, the unusual issue presented by software is determining when an inventor is in “possession” of the invention, not whether a particular type of software should or should not be patent eligible. As you note, an inventor could make a claim to a software invention that no one, including the inventor, could actually produce the code to implement.

  27. Ternary March 16, 2018 6:02 pm

    This seems to be the underlying problem with software: the fear that the applicant cheats by claiming something that is not described in excruciating detail, but in general is known to a person of ordinary skill. In fact, much in software inventions can be explained by incorporation by reference.

    I believe that there are not many people who can actually program and explain a Fast Fourier Transform. Many use it as a standard tool. And rightfully so. Even fewer people can actually explain what takes place in the operating system when a program with standard subroutines is executed on a computer. Why would such a description be useful? How far do you want an inventor to explain a software based invention: to the level of assembler language? And why? Nobody requires that level of detail in mechanical or medical or chemical inventions.

    “… software that improve the operations of machines” is software that provides novel functionality to a machine. It should be patent eligible. The allowance test should be if it is novel (or non-obvious). The rest is all ideological nonsense driven by special interests.

  28. Edward Heller March 16, 2018 7:32 pm

    Ternary, surely there is a difference between the math behind solving a Fourier transform and the programming to implement it. There can be invention in each, but only one is eligible.

  29. Edward Heller March 16, 2018 7:44 pm

    I might have mentioned this before, but I started out programming Minuteman III missiles and ground systems. Regardless of the objective (math, for example) the programming could be sloppy or efficient. There was no room for inefficiency in programming real time systems.

    So, I have a good feel for when the invention is in the math or business method and when the invention is in the software. For example, in Versata, the invention was in the software — the pricing algorithms themselves were old. The improvement was in how efficiently they could be calculated.

    102/103 is ill equipped to handle claims that mix the eligible with the ineligible lest one give patentable weight to the ineligible. For example, with printed matter, the meaning of the words has to be ignored in determining obviousness. Ditto, the content of the CD-Rom when considering an improvement to CD-Rom technology.

  30. A Rational Person March 16, 2018 11:29 pm

    Ternary@27,

    “Nobody requires that level of detail in mechanical or medical or chemical inventions.”

    The thing is, effectively we do require that level of detail in mechanical, medical and chemical inventions. If a person of ordinary skill in the art follows what is described and shown in patent application for a mechanical, medical or a chemical invention, they should be able to practice the claimed invention. Consider that in many chemical process applications, there are diagrams that show how individual atoms of compounds bind to each other and/or how their bonds with other atoms are broken at various steps.

    Although the diagrams may involve abstract representations of molecules, i.e., Kekulé structures, the amount of detail of what is going on in the process that is shown can quite significant in the a typical process patent.

  31. Anon March 16, 2018 11:37 pm

    Mr. Heller,

    Why do you pretend that “printed matter” can never have patentable weight, when we both know that this concept has been explained to you in great detail time and time and time again?

    There is no more sure way for you to destroy your credibility with such disregard for facts, reality, history and law then what you post here and the manner in which you do so.

  32. Ternary March 17, 2018 12:41 am

    Edward: Anything even vaguely connected with math in a claim, let alone described by math, is almost immediately rejected out of hand over Alice. One example is in the field of error-correcting coding. It should be clear that a machine that restores at least part of received signals distorted by noise or other forms of interference, should be patent eligible. There are enough examples that this important technical achievement nowadays runs into 101 problems in the USPTO and in the courts.

    Is a useful machine operation that can be described in mathematical terms that is entirely novel and non-obvious directed to the abstract idea of mathematics or is it a useful application? Because there is no formal prima facie requirement for a 101 rejection, the fall-back for an Examiner is easy: issue a rejection over 101.

    You appear to imply that math on a computer is (only?) patent eligible if it performs the math more efficiently. But certain math applications on a processor (such as early Kalman filters) can/could not work in real-time and still are valuable applications. For instance early stage error-correcting methods could not operate in real-time, but it allowed signals to be stored and received and being processed later to reconstruct images received from space vehicles, for instance.

    “102/103 is ill equipped to handle claims that mix the eligible with the ineligible.” I believe you have it backwards: 101 is ill equipped to handle 102/103 issues which it does by introducing terms such as routine and conventional.

  33. Ternary March 17, 2018 1:04 am

    Rational @27: Nobody generally requires a further explanation or detailed description of a power source such as a battery, a combustion engine or an electric motor in a patent application. What I read in chemical claims is that basic compounds and reactions and properties thereof are assumed (and accepted) to be known. Nobody will reject a mechanical claim because a wheel is routine/conventional or directed to an abstract idea.

    It is unclear to me why computer/software inventions would require listing of source code to be fully enabled. Pseudo-code is one way. But the name of a standard operation (like a Fast Fourier Transform, FFT) would be another. Nothing significant is added to the disclosure by including source code of the FFT.

    A flow diagram of executable functions (or the description thereof) of a software application for instance would suffice one of ordinary skill to build an application. (As long as the description does not equate to “and then a miracle occurs” as in the famous Harris cartoon).

  34. A Rational Person March 17, 2018 9:15 am

    Ternary@33,

    One of the issues I’ve seen with software applications is that a description that is almost the equivalent of “and then a miracle occurs” seems to be far more common than in patents for other types of technology.

  35. A Rational Person March 17, 2018 9:22 am

    Ternary@32,

    I very much agree with your point:

    “102/103 is ill equipped to handle claims that mix the eligible with the ineligible.” I believe you have it backwards: 101 is ill equipped to handle 102/103 issues which it does by introducing terms such as routine and conventional.

    And I don’t think Edward has ever adequately explained why “102/103 is ill equipped to handle claims that mix the eligible with the ineligible” other than using some arbitrary “standard”, such as created by the Supreme Court, that makes certain types of claims “ineligible”.

  36. Night Writer March 17, 2018 12:40 pm

    The duel right now is between the big corporations and everyone else. This is very similar to what happened in anti-trust law where it was watered down through the courts over a 20 year period to being practically nonexistent.

    (But, there is a slight difference in that the liberal intellectuals (most highly unethical) see this as some sort of crusade to free IP like land was freed. They are, in general, highly unethical and poorly educated.)

  37. Night Writer March 17, 2018 12:41 pm

    @35 Rational

    Edward is part of a group of judicial activists to end patentability for information processing.

  38. A Rational Person March 17, 2018 1:28 pm

    Night@37,

    Understood. What’s particularly frustrating to me is that inventions related to information processing are one of the areas of technology where the little guy can make inventions on his own. As pointed out in the book, “Why Nations Fail” by Acemoglu and Robinson, one of the historic advantages of the the U.S. patent system has been how inclusive it has been:

    “The Industrial Revolution started in England. Its first success was to revolutionize the production of cotton cloth using new machines powered by water wheels and later by steam engines. Mechanization of cotton production massively increased the productivity of workers in, first, textiles and,
    subsequently, other industries. The engine of technological breakthroughs throughout the economy was innovation, spearheaded by new entrepreneurs and businessmen eager to apply their new ideas. This initial flowering soon spread across the North Atlantic to the United States. People saw the great
    economic opportunities available in adopting the new technologies developed in England. They were also inspired to develop their own inventions.

    We can try to understand the nature of these inventions by looking at who was granted patents. The patent system, which protects property rights in ideas, was systematized in the Statute of Monopolies legislated by the English Parliament in 1623, partially as an attempt to stop the king from arbitrarily granting “letters patent” to whomever he wanted—effectively granting exclusive rights to undertake certain activities or businesses. The striking thing about the evidence on patenting in the United States is that people who were granted patents came from all sorts of backgrounds and all walks of life, not just the rich and the elite. Many made fortunes based on their patents. Take Thomas Edison, the
    inventor of the phonogram and the lightbulb and the founder of General Electric, still one of the world’s largest companies. Edison was the last of seven children. His father, Samuel Edison, followed many occupations, from splitting shingles for roofs to tailoring to keeping a tavern. Thomas had little formal schooling but was homeschooled by his mother.

    Between 1820 and 1845, only 19 percent of patentees in the United States had parents who were professionals or were from recognizable major landowning families. During the same period, 40 percent of those who took out patents had only primary schooling or less, just like Edison. Moreover, they often exploited their patent by starting a firm, again like Edison. Just as the United States in the
    nineteenth century was more democratic politically than almost any other nation in the world at the time, it was also more democratic than others when it came to innovation. This was critical to its path to becoming the most economically innovative nation in the world.”

  39. Edward Heller March 17, 2018 3:20 pm

    Ternary, applying math in a conventional process (Diehr — passes the MOT for example) or a larger machine (Alappat — graphics unit) to improve it certainly is patentable.

  40. Edward Heller March 17, 2018 3:22 pm

    Joachim, the reason professor Hrdy and others of her ilk are attacking productivity is that this remains a key advantage for America. It is all politics all the time with the hard left.

  41. Ternary March 17, 2018 4:05 pm

    “What’s particularly frustrating to me is that inventions related to information processing are one of the areas of technology where the little guy can make inventions on his own.” Rational @38. 100% agree.

    Anyone with a computer and an Internet connection can develop a novel approach in information (or data) processing. You can learn from articles and published patent applications what some of the critical issues are. There are plenty of free (or almost free) development tools available. Many theoretical issues are explained in free tutorials and video lectures. If one so desires, relatively cheap electronic systems, like Arduino or Raspberry, can be used to develop a stand alone prototype. An inventor does not require extensive lab facilities to develop a decent computer based invention. It is the true democratization of innovation.

    That is why incumbent interests do not like it and oppose at least possible protection of these inventions by small entities. At a minimum, IP owned by small entities and independent inventors is an annoyance and may potentially form a hard to control threat to the market position of large companies. The best protection against outside new technology is to prevent other entities from gaining a monopoly on these (potentially disruptive) technologies. This is why large companies are not against patents per se, but against patents being owned and asserted by small independent entities who can use that to launch themselves into the market.

  42. Edward Heller March 17, 2018 4:11 pm

    Ternary, I only wish there were a consensus that software inventions that solve data processing problems an thus improve the operation of computers are the stuff of patents, while business methods that simply say “do it on a computer” that can be written by anybody with no coding experience and no code at all are not technological and thus are not the stuff of patents.

    Remember Versata.

  43. Ternary March 17, 2018 4:39 pm

    Edward. Math is a mental process and per definition abstract. Doing ordered or sequenced calculations by a machine is not doing math but is conducting a controlled physical process. This is best illustrated by a modification in a machine adder. Assume one replaces one or more XOR devices with EQUAL devices in a ripple carry adder. Such a machine will still generate a result. Whatever the result is, it is no longer described by performing a mod-2 addition. It has to be described by what it always was: a machine operation, which is not an abstract idea. Machines do not apply math.

    Using certain machine parts or machine operations may be conventional, but that does not make it abstract. Machines do not apply math, they merely follow carefully controlled instructions. The fact that a court says that a machine applies math does not make it so. They also have it backwards: math is used to describe instructions and structure of a machine. A computer does not perform math, like a resistor does not perform Ohm’s law.

  44. A Rational Person March 17, 2018 4:48 pm

    Ternary@33,

    I should mention that I am sympathetic as to your arguments as to what should be “enough” to meet the requirements of 35 USC 112, with respect to software inventions.

    However, I think one of the reasons we may be in the the current 35 USC 101 mess we are in, is that many of the granted software-related patents had relatively “thin” disclosures making it easy for opponents of software patents to find software patents that had claims that were poorly supported by their specification and drawings. Unfortunately, the Supreme Court, being the technological and patent law ignoramuses that they are decided to focus on 35 USC 101 in making their decisions and essentially ignored 35 USC 112 and 35 USC 103, thereby short-circuiting what could have been a healthy discussion in patent law and the eventual creation of rational rules that would help an Examiner decide: (1) what is sufficient disclosure under 35 USC 112 to support a claim that involves software and (2) what makes a software process obvious or nonobvious over an existing manual process. Instead we have the Alice-Mayo Test that, has been applied by the Courts and the USPTO, is as rational as trying to determine the number of angels that can dance on the head of a pin.

  45. Night Writer March 17, 2018 4:52 pm

    Ed the Ned>> Business methods that simply say “do it on a computer” that can be written by anybody with no coding experience and no code at all are not technological and thus are not the stuff of patents.

    You know that this is not true. That 103 can be used for business method like your above absurd reduction. You also know that what is happening is that many business methods are being developed that necessarily need an information processor.

    I wish you would stop this nonsense Ed/Ned.

  46. Night Writer March 17, 2018 4:55 pm

    @41 Ternary

    I basically agree with you. What the corporation want is patents to maintain their monopolies, but that can’t be used against them, which is pretty much what they have now.

    Just look at tech. There are now less than 10 companies that dominate pretty much everything with markets where there are only one or two companies.

    Reality check: companies in tight competition don’t bank $10-$50 billion a year in profits.

  47. Ternary March 17, 2018 5:04 pm

    Edward @42. Much of my career was in Enterprise Systems (like ERP, optimized supply chain systems and decision support). While I understand some of the frustration with “business methods” patents by the general public as being “too easy” I do not agree. Having things done with a computer (and a network, and sensors and actuators) is entirely different from having it done by people with pencil and paper. What at the time were called “legacy systems” combined with human action were unable to perform efficient business operations as being done today. Michael Hammer in his book “Re-engineering the corporation” at the time called automation “paving the cowpaths.” And many current automated business processes combined with an automated workflow are a far cry from what were even a decade ago “conventional” business processes. They are so efficient, because they are shifted from “human action” to machines.

    The original Alice patent (5,970,479 ) teaches one of ordinary skill sufficiently how to make and practice the invention, I believe. Perhaps, the elements of the system are sufficiently known to reject the claims as being obvious. However, I never get the feeling that the inventors do not know what they are doing or are not in control of the invention that they claim. I never get the feeling that they merely say “do it with a computer.”

  48. Night Writer March 18, 2018 3:06 pm

    >> “do it with a computer.”

    This is part of the condescension of the SCOTUS and circuit courts. Posner said that all you needed for inventions was to give the inventors a pizza once in a while as they naturally invented. Breyer (who also admits that he takes the facts of the case from amicus briefs) said that all you need is some graduate students for a weekend and you can get almost anything done. Stevens said that you just write what you want on a computer and tell a clerk to go program it. Taranto said that simulating any mental process is per se obvious. Ginsburg said that –basically–technology for controlling human behavior was not for patents.

    The fact is this group think like people did in the 19th century. They are vile group of people that combine ignorance with arrogance and judicial activism.

    Obama, of course, appointed a group of Google selected judges that likely in return for their appointment pledged to burn the system down.

    We are talking about some really bad actors here.

  49. Arie Michelsohn March 18, 2018 7:35 pm

    Mr. Allen, I am awed by your brilliant defense of patents as the key to an innovation economy. It is a salute to a vigorous patent system that promotes true innovation for America and the world, and improves public education and participation in innovations for our future. Thank you!

  50. Joachim Martillo March 18, 2018 8:59 pm

    A comment on British sea dogs.

    One should always check common wisdom and conclusory assertions.

    From The Spanish Armada: England’s lucky escape.

    It was bad luck, bad tactics and bad weather that defeated the Spanish Armada – not the derring-do displayed on the high seas by Elizabeth’s intrepid sea dogs. But it was a near-run thing.

    Possibly because the threat only existed on account of Habsburg rule both in Spain and also in Flanders, after this rather narrow escape the Kingdom of England and later the United Kingdom developed a policy of keeping Europe disunited.

    The UK thwarted Napoleonic and later Hohenzollern-Hitlerite hegemony over continental Europe.

    WW1 and WW2 may partially result from this UK policy, and these two wars can be viewed as one war with a short cessation of hostilities (and replacement of German political elite) in the middle.

  51. Damien March 18, 2018 10:32 pm

    @Angry Dude “This whole structure (PTO granting patents and PTAB canceling them later on at 1000% of the initial cost to inventor) was carefully conceived and financed by google and their (bi-partisan) friends in congress, scotus and obama’s white house”

    Wait…. Obama invented the Re-exam? IPRs are not new… they are simply a reworked version of an already existing administerial process for determining a patent’s validity.

  52. Anon March 19, 2018 6:23 am

    Joachim @ 50,

    Thank you for the informative and entertaining link.

    Not to drfit too far from any intended purpose of your story, but the actions of the English (one of Mr. Heller’s favorite bastions of “Rights”), speak more directly to the inherent frailties of the “Might makes Right” doctrine that he would enshrine in place of the inalienable rights doctrine that the Founding Fathers actually believed in and depended upon in the establishment of the grand American Experiment.

    Of interest to all could be the description of propaganda in use to help control internally where the Might of arms may otherwise have been lacking.

    Of most recent vintage in the exposition of his beliefs, Mr. Heller has backtracked a bit towards “family and property” being a driver (rather than any Might that might be employed for their safekeeping), and perhaps your article will help move Mr. Heller further along the path to understanding the difference in the origination versus the protection of Rights.

  53. Night Writer March 20, 2018 9:16 am

    One thing about patents/inventions that is not talked about is that many innovations take more time than is saved by one person. Without the potential of recovering your time and effort, there is no point in seeking a faster solution that will take you more time than you personally would save.

    (That and hindsight reasoning are the two most neglected aspects of patents.)

  54. Joachim Martillo March 22, 2018 1:28 am

    Edward Heller @ 22 March 16, 2018 3:54 pm,

    When people tell me that they cannot understand how religious people could do or believe this or that, I try to explain that religion at root is a belief system evolved for propitiating the “gods,” which is primitive understanding of natural phenomena (see the connection to patent law).

    Originally, there is nothing that can be called ethics in the primitive or basic form of religion. James Frazier describes religious origins in detail in The Golden Bough.

    Pagan religions eventually became important for establishing exchange rates by setting uniform charges for various propitiation rituals. For this reason, the spread of the Roman Imperial Order was accompanied by the spread of the Roman Imperial Cult.

    Opposition to the Roman economic order coalesced around Judaic religion — hence the tremendous success of Judaic missionary activity, which was followed by phenomenally unsuccessful Judaic rebellions (or wars). The Romans were unparalleled in the ancient world for military engineering and understanding of logistics.

    While the Greek philosophers developed ethics independently of Greek paganism, it became a major part of Hellenistic culture.

    Pauline Christianity introduced the concept of community into religion and embraced a limited form of pagan Greek ethics. Eventually it merged with the imperial cult and became the imperial religion.

    Biblical Judaic religion may have developed in Alexandria in the Hellenistic environment created by Alexander’s heirs. This religion merged with the Judaic Temple cult that was practiced in Leontopolis. This religion was successfully transferred to Palestine and became the religion of Judea (and in a slightly different variant — of Samaria).

    Judean Christianity was a native Judean religion that challenged the imported Temple cult that had became the focus of anti-Roman mercantile resistance.

    During the Bar Kochba rebellion, Bar Kochba viciously persecuted Judean Christians, who were mostly peasants that benefited from the expanding Roman economic order. Part of the Judean Christian community seems to have fled into the Hijaz region.

    In the aftermath of the Bar Kochba rebellion, Judaism was shattered in Palestine, and Judaism became centered among convert Greek, Phoenician, and Mesopotamian communities.

    Pagan Christianity spread via missionaries and codices throughout the Judaic communities and introduced a universalist communal ethos. Judah Hanasi tried with only limited success to introduce Mesopotamian apodictic Mishnaic Judaism, which had its own codices and its own particularist ethos, into Palestine to compete with codex Christianity, which was becoming dominant throughout Palestine and the Roman East.

    Constantine found it expedient to replace the Roman Imperial Cult with Roman Imperial Christianity, which merged with the Imperial Cult.

    The Alexandrian and Palestinian Judaic communities passed almost entirely into Roman Imperial Christianity. The Church fathers incorporated almost the entire corpus of pagan Greek ethics into Constantinian Christianity.

    The Hijazi Judean Christian community seems to have evolved into Islam while Mesopotamian Mishnaic Judaism evolved first into Talmudic Judaism and then into Rabbinic Judaism. The Judaism of the Greek and Phoenician converts within the Roman Empire seems to have become a mostly mercantile religion of those merchants that never integrated into the Roman economic order.

    For reasons too complex to explain, the Roman economic order began to collapse while Mesopotamia became a major economic center in the Islamic world as well as the center of Rabbinic Judaism, which spread westward to N African and European Judaic communities along with a Uniform Commercial Code, which was both developed on Islamic-Mesopotamian models and also independent of the collapsing Roman economic order.

    In essence, Rabbinic Judaism reconstructed the economy of the Roman world on a model that separated economic and political spheres as they had never been separated in the Roman world.

    Nevertheless, Greek and Roman inchoate ideas of intellectual property survived especially on the periphery of the Roman Christian world and eventually gave birth to the Anglo-American patent system, which transformed the world.

    Concepts of intellectual property never obtained much traction in Islam or Judaism.

    The Christianity of Southern Slavery, later murderous Redeemers, and today’s white racist Christian evangelicals seems to have completely abandoned the pagan Greek ethics that was incorporated into Constantinian Christianity and to have replaced said ethics with a crude worship of the supremacy of whites over blacks. We see a somewhat similar sort of phenomenon in Zionized Judaism.