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ESR Invited To 'Advise' USPTO
alannon writes: "Most of this article, posted on MacWeek's site concerns an 'open source sermon' that ESR recently gave to a group of Mac hackers at the annual MacHack convention. Most of his speech was taken with a grain of salt, though he left a gem of an annoucement: He's been invited to join the the U.S. Patent and Trademark Office as a member of its citizen's advisory committee! I'm sure he'll make lots and lots of friends there. "
These aren't black and white issues, and intelligent, thoughtful people can disagree. In my experience, anyway, the best way to persuade someone to change direction is to agree with them as much as possible, and introduce shades of gray into the discussion. Arguing that they're fundamentally wrong tends to be less productive.
I'm posting this here because I think there are many on the open source community that don't realize the immense harm that would come to distributed control of IP if patents are abolished or weakened. If that happens, the guys with the most money win by default, since the smaller guys will have no protections whatever.
The following is a letter I wrote to LWN a few weeks ago outlining part of my argument. It will rub a lot of people the wrong way, but we can't afford to destroy the patent system unless we really want Microsoft and other huge companies to call all the shots. I don't think a lot of people here have thought these issues through.
Letter to LWN (at http://www.lwn.net/2000/0420/backpage.pht ml)
I've gotten several challenges to my assertion about patents as a desirable thing
(mostly asking for examples of small inventors that actually did profit from
patents) so here's my quick response, FWIW:
Anyone saying patents don't do immense public good, and provide worthwhile,
needed, and *effective* protection of small inventors against large corporations
is simply ignorant of the history of even quite recent technology. Many
inventors started small, but because of patent protection were indeed able to
profit greatly from their inventions.
From the "gararge-shop" POV, well, just off the top of my head, there are the
examples everyone is familiar with: Bill Hewlett and David Packard (HP,
instruments), Steves Jobs and Wozniak (Apple, home computer), and outside the
computer industry, folks like Edwin Land (Polaroid, polarized materials and
instant camera), Chester Carlson (Xerox, xerography), Henry Ford (Ford,
affordable automobiles), Thomas Edison (GE, light bulb, motion pictures,
phonograph...), and Alexander Graham Bell (AT&T, telephone), all of whom
profited greatly from their patented works. (One could argue for the inclusion
of Jeff Bezos in that list, although around here, that's a bit like whacking a
hornet's nest with a stick...)
But the classic twentieth century example of patents providing exactly the kind
of protection I'm talking about is probably that of Philo T. Farnsworth, whom
you may never have heard of, although you likely use his invention (electronic
television) every day. Farnsworth was the prototypical individualist inventor
who persevered against all odds and eventually defeated David Sarnoff and
Vladimir Zworykin of the immensly powerful RCA. RCA was truly the Microsoft of
its day in terms of control of the market and underlying technologies through
acquisition - often under severe economic and other pressure. RCA had a policy
of never paying royalties for any technology - a policy they managed to uphold
until they met Philo Farnsworth, who just wouldn't give up.
Farnsworth fought virtually alone against all of RCA's power for seven years
before the final court rulings that his patents had clear validity and
precedence over Zworykin's, forcing a tearful RCA lawyer to sign a royalty
payment agreement to Farnsworth. (Farnsworth publicly displayed television
*five years* before Sarnoff unveiled RCA's infringing version to the world
amidst great fanfare at the 1939 World's Fair, leading many to believe Sarnoff
and RCA were the inventors of television - sound like anyone today?)
Farnsworth's experience is, if anything, a case study for the need to
*strengthen* patents and either streamline patent appeals or extend the length
of patents when thier commercial utility is impacted by unsuccessful challenges.
(World War II intervened, and the government outlawed television for the
duration of the war (the technology was needed for radar, night vision and other
inventions Farnsworth then worked on), and so Farnsworth's patents expired
before he could profit from them.
Do you still think patents are a bad idea? I'd argue experience shows that
patents should be strengthened and perhaps that the duration of Farnsworth's
patent should have been extended, due to RCA's clear abuse of the patent system
and the courts. (I also think the government should have been upright enough to
grant extensions in the name of fair play to all inventors whose inventions were
commandeered for the war effort, but that's another issue entirely.)
History clearly shows that often patents are all that stands between real
progress and innovation and the acquisition by force so typical of a Sarnoff or
Gates. Strong patent law is the *only* effective defense against large
companies stealing technology from small inventors. (What RCA tried to do could
be accurately portrayed as theft.) I'm amazed more people don't get this, but
they tend to avoid history, and fail to recognize that our American forefathers
were wiser than we are in pretty much every way.
Although it's not perfect, there are very good reasons the patent system is the
way it is, and we meddle with it at our peril. It would be nice to see a
balanced discussion of this issue rather than the knee-jerk reactions that are
more common in the open source/free software community.
Dub
P.S.: I recommend spending some time browsing through some of the links below
to see how many of the great inventors of recent history were independent - the
protection provided by the patent system allowed them to develop and in many
cases profit handsomely from their inventions. You might be surprised at the
diversity and "ordinariness" of many of these inventors of important
breakthroughs - they're not such an elite group as you might imagine (the list
is somewhat US-centric - our culture celebrates invention, and so links for US
inventors are much easier to find):
National Inventor's Hall of Fame
MIT's Invention Dimension Archive
Good Internet Public Library list of links to Inventor information
"The future's good and the present is nothing to sneeze at." - Roblimo's last
I understand your concerns. But those pro-corporate and commerce-friendly stances are why ESR is a good choice. He knows how to talk to the suits. He understands their points of view.
Who do you think is going to get better results: a man who walks into a new office and says, "Okay, there are a couple problems here, I see a few misunderstandings, here's a better way," or a man who cannot compromise in the least? Someone who walks in and immediately starts off with, "No, all of you are wrong. There's only one way to do this, and it's mine."
How are we going to see "real change," as you say, if we aren't also willing to make changes?
You cannot apply a technological solution to a sociological problem. (Edwards' Law)
The idea is that if you know that you will be rewarded for spending several years producing a cure for a terrible disease, people are more likely to spend the time developing.
The drugs industry does still produce a lot of new products, and doesn't find the patent laws highly restrictive. The problem is that the cost of getting from a theory that something should work to a legal drug is very expensive. It has to go through several development stages, then several testing stages. This requires a lot of people to help in trials. It costs billions to get that far, and so far the company hasn't managed to sell a single product.
If the drug is not patented, as soon as a drug is released, competitors can start producing immediately and undercut the company that did the work easily.
An example was penicillin (so I've heard). That was not patented. It took a long time for the research to find out if it was actually useful, since nobody was willing to spend the money needed for tests. In the meantime, a lot of people who might have been saved died.
BTW, you can help stop software patents being introduced in Europe by putting your name to EuroLinux's petition.
-- Ed Avis ed@membled.com
New from Broccoli Entertainment: "Pierce Brosnan IS Agent ESR with the License to Advise!"
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Posted by 11223:
I have just the T-Shirt picked out for him to wear...
Mostly depends on whether this group is one of those groups that has an advisory committee because they know they need it, or if they have the committee because they've been told they have to have it.
If the former, they're likely to realize how clueless they are. If the latter, this will be all heat and no light.
-- Truth goes out the door when rumor comes innuendo. -- Groucho Marx
The point is that they're deliberately kept underfunded and underpowered, thus any decisions they make will be by nature be essentially, "Did the lawyers dot their T's and cross their I's?"
That's all they're paid to do, that's the only infrastructure they can put together.
An advisory committee is, sadly, a PR move. Their corruption runs pretty deep; their own head stated quite plainly he'd patent a legal argument if he could get away with it. It's not corruption in the personal sense; they're just an agency with a subverted mission and a gigantic loophole. The best the agency could do would be reject every single Net related patent--and watch themselves get taken over by a new administration.
Patents are an extraordinarily powerful tool of control, and quite a few law schools are churning out people who are more than capable of taking advantage of that. Don't expect a Citizen Action Committee to be able to do too much to change this, unfortunately.
It's an excellent gesture, though, and ESR is a great pick.
Yours Truly,
Dan Kaminsky
DoxPara Research
http://www.doxpara.com
And for the other side of patents see this article on how an attempt was made (is being made) to rig the system to extend a profitable drug (Claritin) by subverting the patent system (much like the Copyright system has been subverted by the continual grandfathered extensions of the copyright term, the most recent being the Sonny Bono law).
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Personally, I believe this line to be pure bull - not only in the Mac community, but also in the Linux community.
I know many people who started using Linux, and couldn't write, without help, a single, simple, syntax-error-free line of C code.
Now that may sound very harsh against Linux users - and it is very well meant to be. All in all, the technical competence of most Linux users IS above average. But that doesn't mean that they all have the competence of commercial quality programmers, or even mediocre programmers. I doubt the majority of them could fix a simple buffer overflow bug given adequate debugging information that points the bug out directly.
The claim that there are "40,000" contributors to "Linux" is very misleading. First off, Linux is more than the kernel. It is all the programs that it takes advantage of or requires to get the job done. Linux would be NOWHERE without programs like 'make', 'gcc', 'gdb', and all those similiar tools. However, those tools WOULD exist without Linux. So, that number (which is pure estimate on the part of anyone claiming it as fact anyways) most likely includes the developers of all the programs that Linux takes advantage of... and in this case, that is like saying a printing company (Which can be run by a handful of people - a manager, a couple secretarys, a couple graphic artists, and a few printing press operators) employees "hundreds of people", by counting the foresting company, the people that operate the paper-making machines, and the people who produce the ink.
IF, on the other hand, said number was restricted to the heart of Linux - for TRUE "Linux" is nothing more than the KERNEL - I wouldn't be surprised if, over the course of Linux's 8+ years of evolution, 4,000 (not 40,000) people have contributed something to the source code for some program for some platform or another - but even then Im wondering how many of those contributions were very minor ones - such as a bug fix - and how many contributions overlapped. How many people provided moderate (more than a few dozen lines of code) contributions, and how many provided SIGNIFICANT conributions (on the lines of a few hundred or thousand lines). I'd guess more along the lines of 400 and 40, respectively. And how many Linux kernel contributors are well known by any kernel hacker? I think the number falls around 4 (to 8).
In the end, the true core work of a project is done by just a few people (scaled to the size of the project, of course). While they may take advantage of existing libraries (such as a PNG or JPEG library, ZLIB compression, a communications archiecture, or some such), that does not truly increase the size of the development team - that actually gives them less of an excuse to have large amounts of people. You can't claim the authors of these libraries on your dev team (tho giving them credit for their work and it's use in the project is something else entirely different).
And finally, what if the project is commercial? The problem these days is that Free Software (Free as in Freedom of Speech/Open Source) is equated these days with Free Software (Free as in Free "Beer"/No Cost). This is a very dangerous equation that is being made, and even promoted by so-called experts such as Richard M. Stallman. Eric S. Raymond has a clearer view, but it is still distorted by the belief that everything can and should be source-available. In many cases, especially Games, this option isn't available while the product is still commercially viable. Hence why Doom and Quake were not Open Sourced until years after they were off the shelves and replaced by better products (in the cases of Doom and Quake, 2 generations of products later).
- Chris Jacobson
(MaineCoon)
Hunt your preferred prey at Aliens vs Predator MUD. Join the war at avpmud.com port 4000
Seems to me that the proper reaction to the ability to enfore a law ought not be to stop enforcing it. If they willy-nilly grant patents and extend the intentions of patent law (see granting patants on business models) they have little right to complain about workload. If they stop revieing patents methodically as they have then you wind up in a mess because everone is suing claiming patent infringment. Yet more work for the USPTO. At least if you went the other way and only reviewed the truely novel inventions then you leave it up to indivudual inventors to protect their intellectual property instaed of lumping the responsibility on the already overburdened legal system. If some idiot can look at your invention and duplicate it because it was too simple then I suggest it's too obvious to be patented. Things like bottle openers and anything easily deducible should not be granted these rights. More broadly, the current patent system does not suit its intended purpose and is far more damaging to society than helpful. In the end I do blame the patent office and its current leadership for broadening the scope of patentable IP. they should have done the opposite. The reason they didn't? It was purely for personal greed and power. there is an inherent conflict of interrest when the head of the USPTO, big business and all lawyers involved on both sides stand to profit from granting sleezy patents. Power and/or money.
The Bazaar, as ESR portrays it, simplifies mass programmers down to intelligent testers refining code and reducing bug counts - this is true, but this does not necessarily mean better, more stable, or more usable software. More problems are revealed and more features creep in, but the real value of Open Source is the sense of personal responsibility people take (at this point in time anyway - perhaps the revolutionary attitudes) to invest their time, talent, and energy in producing something of quality.
Now applying this same attitude to government - I find it pathetic to see the change in the amount of dedication and commitment we currently show to our government. One look at the rusted ornate decorations on most government buildings indicates that most of the American Public takes little responsibility now in making and maintaining our government as something truly valuable. We did at one point in time, but I think Americans take for granted that someone else will take personal responsibility for our government. It's not until these notions of personal responsibility and irresponsibility replace the order/chaos mentality in the minds of the public that a true change in the IP business models will take place.
Well, no one else seems eager to take on this bit of US Patent Office propoganda, so I guess I'll stick my neck out. This will have to be brief, as I've work to do and can't spend the entire afternoon replying to slashdot.
The Patent system is a lot like the Lottery.
A few small people win big, get rich, and become poster children for the status quo. (e.g. the historical examples cited in the previous post. Alas, for many of the poster children, the honor is posthumus, for many had their health ruined and indeed even died from the stress of fighting a battle against terrible odds.)
A great many more small people are directly harmed in the process. (e.g the many who lost thier battles to better funded, larger commercial interests, such as those inventors who lost all rights to their inventions to Thomas Eddison, who claimed both historical credit for work which wasn't his, as well as monetary gains, all facilitated by the US Patent System. Another example is of course the hundreds, perhaps thousands, of small businesses stillborn due to government enforced monopolies. Other costs, such as inventions never realized because the base ideas are locked down, have been discussed elsewhere).
In the end, poster children aside, the system is designed to favor the large players, again at the expense of the little guy. (Lotteries bring most of the money they generate into state coffers, not the pockets of "winners" or the "little guy." So to, most patents are owned by corporations. Most legal conflicts between small inventors and large corporations end up being resolved in favor of the large corporation, for they have more capital and more lawyers to present their arguments.)
In one respect the patent system is even less fair than the lottery. At least anyone can buy a lottery ticket, even with the same winning number as another, and the two lucky poster children can share their tiny slice of the pie. Not so with patents. Its a winner takes all system, and the winner is almost always the large, well funded and well represented corporation, not the little guy.
The Future of Human Evolution: Autonomy
5 hour keynote speech? 5 HOUR? Good god. Castro could learn from this man.
When Emperor Nero of Rome gave speeches, it was said that there were spies in the audience, and when he finished (eventually), the first person to stop applauding would be executed. Likewise with Stalin.
5 hour speech, huh? Open source really brings out the fanatics!
;-)
--Remove SPAM from my address to mail me
As somebody with their hands in both sides of the open source pie, I can honestly say that it's nice to see that the government is responding to criticism from the open source movement. However surely ESR is the wrong person for this kind of thing since he is known for his pro-corporate views and commerce-friendly take on free software.
As a consultant who has worked with several major software houses over the last few years I've been part of the increased uptake of open source solutions into the e-commerce market, doing my bit to promote Linux and other products like Apache to customers for whom scalability is not 100% essential.
Anyway I've talked to some of them over a few beers (expense account of course) and they all seem to say the same thing about the open source luminaries. They are worried about RMS - about his rabidly anti-corporate stance and his Communist philosophy - and would much rather see ESR move into the limelight as he seems extremely sympathetic to companies that want to promote a tech-savvy image in the software market.
So surely ESR is the wrong person to let onto this USPTO committee if we want real change in this area? It seems likely he'll be all bark and no bite, and when it comes to the crunch he'll fold and let the corporations stick it to him in a very private place.
At least RMS wouldn't give in to corporate demands. Of course the fact that he looks like he's been living in a cave in the forest with a bear since the 60s wouldn't help, but it'd still be better for all of us.
---
Jon E. Erikson
Jon Erikson, IT guru
I mean... honestly... I think that we're going to find that *quality* is motivated by money. While we can get ADD programmer types to get interested in linux now, what about when their grandmother is having problems with USB or something? Will we still see programmers interested in programming for a market-saturated product *for free?!* I think that we'll see GPL programmers wanting more interesting things to do, perhaps. Something they can really get glory for.
----
Before you jump on the patent office, it's important to realize that they are understaffed & underfunded - Rambus (intel & sony) have more lawyers doing a single patent application than the USPTO's entire staff. Go to their web site and read their complaint - they aren't even getting to keep the money they make in fees! from their site:
"All of our revenues, projected to be 1.2 billion dollars in fiscal year 2001, are paid as fees by the knowledge-based high-tech leaders and individual entrepeneurs who rely on us to help them flourish in this economy. We are no burden to the American taxpayer. Moreover, we use activity-based cost management principles. Our fee revenues relate directly to the work we do. We do not "have a surplus" or "make profit".
The proposed mark would seriously impair our ability to effectively manage our operations and provide our customers with the quality products and services they expect and deserve.
well guys, you're not even doing that NOW.
Since the mark would fund us at 900 million dollars, or about 25% less than the the total fees paid by our customers, we would be forced to make significant modifications to our operations.
i don't blame the uspto one bit for the insanity that is our patent system. i blame the whores in washington who are giving in to lobbying pressure to underfund the patent system.
ESR can yell at them all he likes. maybe he can talk them into denying patents they don't have time to read, rather than granting them. of course, if they do that, they'll probably have to start having bake sales to buy lunch as of the next year's budget.
--
What happens when you outlaw guns