Another confirmation that all government activity is only for the rich. Sure, it's naive to think otherwise, but it would be nice if they told the truth about it rather than filling us with utopian bullshit about how it's for the "greater good of all".
I sometimes come here to check up on the goings on at slashdot. Nowhere else do I find such a hotbed of activism and ignorance. It would be entertaining if it weren't so frustrating.
To wit,
"...all government activity is only for the rich" is a slight overstatement. And whether you understand or not, property rights are not the embodiment of evil. Not even intellectual property rights. Patent laws in software will help the Indian economy, create more incentive for investment, and ultimately help raise the standard of living in the world's largest democracy.
The fact that this post got a "4: Insightful" means the slashdot ranking system is broken broken broken...
The legal ability to patent your ideas is indeed a right. The US Constitution, source of all our rights in this our secular government, enshrines patents and copyrights for useful arts and sciences.
The opinion article linked on/. is only the first of two articles in that issue. The second article, expanding on the first, had three glaring errors that I noticed, not to mention its rather skewed view.
First, the main article states at one point that if anyone wants to see that the patent monopoly system is broken, just look at Microsoft, the monopolist de jure.
But Microsoft's monopoly is not based in patents. Though they probably patented several aspects of Windows, their monopoly arises from copyright protection of the program, not from patent protection in it.
Second, the article laments that examiners "typically" don't know as much about an invention as the inventor.
Well, duh! The inventor knows more about the invention than anyone in the world, by definition!
Finally, the article argued that it is less work for examiners to just allow an application than to fight it. This, states the article, creates a perverse incentive to allow applications without scrutiny.
But examiners work in a point system. Points must be accumulated to keep your job. You don't get points for allowing patents. You only get points for rejecting them. So the system actually provides incentive to reject all applications, whether they are stupid or fantastic.
I recite these points (note again, the are not in the article linked here at/. but are in the paper issue of Economist) because in my view, the article was skewed. I agree with many of its points--the threshold should be higher for some areas of patenting; business method patents were always a bad idea; allowing third parties to submit art during examination would improve quality of issued patents (though it would definitely make the process more expensive).
However, the article ignored many benefits to patents and approached the issue as though there is no reason to have such limited monopolies. It also based its position on the some flawed points, mentioned above.
You cited the AIPLA and IPO statements as supporting your view that "software patents do not help the economy and innovation at all." But your citations from these organizations don't really make that point. From the AIPLA statement, in the body of the document:
AIPLA believes that Congress, and not the PTO or the courts, is the proper authority to consider economic theory and competition policy-oriented principles. For the reasons discussed below, the PTO and the courts should not inject these theories and principles into their decision-making.
They are talking about uncertainty in the law, which is a blight. Uncertainty restrains economic behavior by increasing risk. The statement states that allowing the PTO and courts--rather than congress--to inject economic considerations into their decision-making would be bad, because it would not be in actual legislation, but in rules promulgation--making it ad hoc and slightly arbitrary. But their point is definitely not that patents hurt economic activity. Their point is that uncertainty in rule application would hurt economic activity. And I agree with them.
You also cited the IPO statement:
6. IPO does not support the FTC recommendation concerning considering potential harm to competition in deciding upon the scope of patentable subject matter.
10. IPO does not support expanding economic considerations in patent law decision making.
#6 seems to contradict your position, because the IPO is arguing that considering the scope of patents should not take "potential harm to competition" into account. Your position is based on the idea that patents harm competition. So they seem to directly contradicting you there.
#10 reiterates the AIPLA argument made above, which does not apply to this discussion, as I explained.
"There is no economic law that says "more and stronger exclusion rights per definition result in a healthier economy". And there's also no juridical law that says "lawyers will always defend what's in the best interest of the economy as a whole""
I am not arguing that patent protection should be extended to absurd levels; I haven't even argued the current level of protection is best (I don't think it is--patents in software should be harder to get than currently). I did argue against your point that "software patents do not help the economy and innovation at all."
Case in point: offering one company a monopoly on selling things via the internet, makes investment in all online shopping companies a lot less attractive
Your example monopoly is a bit broad, and would indeed stifle the market; however, patents are not nearly as broad. You essentially describe a patent on the entire industry, an absurd example, and the only one in which your point holds. But the fact that monopolies can be obtained at all provides great incentive to invest in those companies which have monopolies.
Yes, but that's not productive. In fact, every time such a transfer occurs, you extract money from the software business and invest it in lawyers. Something like that is only defensible if the effects on the whole are positive, e.g. if such transfers are necessary to spread knowledge throughout the industry. That is not the case with the software sector (see the studies I pointed you to).
You are focusing on the monopoly aspect, and accurately pointing out the downsides; but you're ignoring the upsides to property rights. The software may never have been written to begin with without an investor to pay the programmer.
And your idea that "every time such a transfer occurs, you extract money from the software business and invest it in lawyers," ignores the fact that the licensee gets to sell the product too--which makes money for the industry and employs programmers. Consider Apple's refusal to license their product. You don't see many Macs around today compared to IBM and its clones. That's because IBM licensed their technology out, while MAC refused to. Licen
Then why do you think those IP-lawyer organisations state that you should not take into account the economy?
Respectfully, I am not sure what organizations you are referring to. It sounds strange, since the whole concept of IP is based on economic incentive.
'but lots of money has gone into developing software *because* of software patents. '
Prove it. Almost all studies I've seen claim that the incentives to innovate in software is competition
Actually, I was talking about investment incentive, not incentives to innovate. Competition indeed promotes innovation. But property rights promote investment.
You also say "almost all studies...." I assume this means you have read some studies that support the arguments for patents in software.
Did you know that enforcing a software patent in court in the US costs between US $1,500,000 and $2,000,000 (if you're lucky)? Same for defeating one in court. How many small companies can afford this, do you think? Those patents are worthless if you can't afford to enforce them.
Litigation is not the only way patents are used. There is a large market in licensing, and lots of money changes hands based on patents without ever litigating. Your argument, respectfully, sounds like this: "Civil tort litigation can cost millions. Therefore we should do away with tort claims." While the current administration in DC is pursuing this logic with respect to medical malpractice torts, I disagree with it.
The point remains that lots of capital goes into software based on property rights. Remove those rights and you will weaken the industry by reducing the amount invested in it. I am not saying it would destroy the industry; but I disagree that patents in software "do not help the economy and innovation at all," as you argue. It seems patently obvious.;)
It's only far-fetched for IP-attorneys that don't think that the economy should be taken into account when deciding about patent policy
The economy is exactly why software patents should exist. Not all large companies may favor software patents (particularly those who have not invested heavily in IP protection); but lots of money has gone into developing software *because* of software patents. It is good for startups too, who can protect an idea and attract capital from investors. Investors like property rights. These facts should not be ignored in any debate over IP rights.
It seems to me that patent rights in software can co-exist with open source. They co-exist now.
Do you really think that any developer (or most companies) can afford to actually survive long enough to dispute it in court once Microsoft rolls out a fleet of high-priced lawyers? If they get overbroad patents, nobody in the industry will be able to do anything. Period.
This is not exactly right. If they try to enforce a bogus patent that would affect others in the market, like, say, IBM or someone with their own massive patent portfolio, those other amici would submit briefs in order to defend their own interests.
Constructs mentioned in the summarly like stacks and queues are fundamental computer data structures. All programmers have used them at one time in their lives, and will probably need to again.
The patent doesn't prevent use of the things you mention. It only applies in a very limited context. Read the claims. One must infringe ALL the elements of a claim in order to infringe the patent.
IANAL, but once the patent is granted, the process becomes "guilty until proven innocent". If the patent holder goes after an "infringer", it is now up to the infringer to prove they are not, which can be a costly endeavor.
This is incorrect. The burden of proof is on the owner of the patent to show infringement exists. I do agree that defending a patent case is costly, but you have the burdens of proof backward.
Boy, didn't think anyone as naive as you could possibly exist!
If MS's and the PTO's history has taught anyone anything, it's that the PTO will grant any coporation a monopoly on any wild ideas they can come up with a complex definition for a patent application, no matter how invalid it might be, and let everyone else clean up the mess they create by granting that application at everyone else's expense.
And MS, well, everyone (but you, it seems) already know they're a monopoly.
The man made a valid point, and you reply with personal attacks? It has been a while since I surfed/., and now I remember why!
You, sir, seem to understand that to infringe a patent, one must perform all the listed limitations. Claim 1 of the patent in question has many many limitations:
1. A method for dynamically displaying pricing data on a client display device comprising:
establishing a communications interface between a client computer and a server computer;
requesting pricing data from the client to the server for at least one object;
generating pricing data with associated options and rules for selection and combination of the associated options for each object at the server;
transmitting the pricing data, associated options, and rules for selection and combination of the associated options from the server to the client;
displaying a first set of pricing results on the client display device;
providing a user interface on the client display device for user interaction with the pricing data and selection and combination of the associated options;
using the rules to prevent a user from encountering a conflict by automatically correcting any conflicts to prevent the conflicts from being displayed during the user interaction with the pricing data, the rules for selection and combination containing all potential conflicts that may occur during the user interaction and corresponding safeguards to prevent the user from encountering and viewing a conflict during the user interaction with the pricing data; and
dynamically updating the pricing data using the client computer to process the update and displaying the pricing data on the client display device in response to user interaction with the pricing data and associated options, and rules for selection and combination.
So many of the objections I find in this forum seem slightly uninformed, because they pick out a single limitation, point to prior art, and call the patent bunk. Though the patent may indeed be bunk, it is not for many of the reasons accepted here.
If I invent some software, I have done ALL of the work needed.... If I am really worried that somebody will steal my idea, I can try to keep it secret. I can also copyright the software and nobody can copy it exactly, they will have to do work to reimplement any ideas, and thus I am at an advantage.
You are correct, other forms of IP do exist, copyright being the most common. But your appeal to copyright sounds like you are against free software and the GPL. Is that the case? Copyright is a much more common and much more limiting control on software than patents are. Every line of code ever written is under copyright. Only ideas that have never been done before and which are non-obvious are supposed to be patentable. To me, copyright of software is the draconian form of property right. I am also biased against copyrights for software because copyright is supposed to protect expression, and software is much more akin to a tool than expression in my view. And tools should only be protected if they are innovative. We don't give IP protection to other tools like screwdrivers. But software enjoys copyright protection unfortunately because programmers type words when they create it. A judge therefore reasoned that it was expression, and subject to copyright.
Either way, my point was that software requires some form of IP protection. Many on/. disagree with even that basic premise. You seem to accept the need for IP in software. So I think we basically agree.
Except for the part where you say IP is communist/socialist.;)
Writing the first copy of a piece of software is very difficult. However, writing all copies of a piece of software after the first copy *is* trivial. This is the huge difference between software and making the second transistor.
This is exactly why there must be some kind of IP protection for software--because writing that first version of it is difficult, time consuming, requires great skill (which requires an expensive education), etc., but copying it is dead easy. So without property rights in software, how can anyone profit from their work?
Suddenly you have zero incentive to actually exchange money for use of the patented device, so suddenly there has to be artificial laws and restrictions imposed on your actions, which is socialism/communism and should actually be violently hated by businesses!
1. The buyer's incentive is not the reason for patents. Let's take your example a step further: Not only does the buyer no longer have any incentive to pay for transistors (if they can be easily reproduced, like software) but now the guy who invented transistors (and who presumably invested time and money in inventing them) has no way to recoup his investment cost. If, before he made transistors, he knew he couldn't prevent people from easily copying them, would he have wasted his time and money inventing them to begin with?
2. Patents are socialist and communist? Huh? Socialism is when the public (i.e., the government) controls the means of production. Communism involves collective ownership of property. Patents, on the other hand, allow private property rights--which is capitalist, and decidely not socialist or communist.
I read lots of news, including news other than/. posts. Maybe that is why you are confused.
(1) Patents *decrease* security for investors that actually produce products. That is because patents are a legal minefield that nobody can be sure of navigating safely.
Investors rarely produce actual products, so you are talking about a tiny minority. Most of our production (invention) comes from the workers (engineers), not the investors. So your statement that "Patents *decrease* security for investors that actually produce products," [emphasis added] is kind of moot. The vast bulk of our economy is based on corporate activity, and the investors in companies are not "investors that actually produce products." So you sound like you are bashing patents because they aren't designed to make entry into the market by individual inventors easy. Patents are not meant to do that (though they aren't necessarily intended to prevent this either). They exist to get new products to consumers. They do this by making a return on investment more likely--by providing a property right in the fruits of the investment.
(2) The one group of investors that are not at risk from patents are those who invest in patent holding companies. But patent holding companies don't produce anything. They patent ideas, sometimes after they have been invented, or just after the technology to invent them has been developed, and then specifically do not invent it, but wait for it to be invented, and then mug the inventors.
This statement makes no sense, on so many levels. Do you not realize you must invent in order to patent? That you can't patent something someone else invented? You demonstrate a lack of understanding of this subject. I am not usually this critical of people, but you asked for it in your strident reply to me, and with this nonsense you posted.
(3) No, the investors do not earn it. The inventors are the ones who earn it. You seem to have drifted from the concept "it can take money to earn money" to "anyone without money must be prevented from earning money."
Investors don't earn it? Please tell me then, who would employ the engineers without the investors? We need both. And both need incentive to participate.
And how do you equate my statement with this idea that "anyone without money must be prevented from earning money"? That sounds like a knee-jerk reaction to anyone not bashing patents wholesale. And it sounds like you are against the investors making money--like the engineers are the only ones worthwhile in this equation. You are incorrect if that is your view.
In line with this, I should note that you seem to have a flawed concept of business....But consistent with our country's slide into fascism, people (including, it seems, you) are beginning to forget any group except the investor and sometimes the customer.
Fascism? You know, looking back, all I posted was, "Patents provide security for investors. That means companies have more money to hire more inventors. That means more inventions."
And you jump in and call me a fascist? Ever heard of capitalism? Maybe you were trying to reply to Adolph Hitler's post (he was a fascist), but got mine by accident? My post wasn't mean or insulting at all. It certainly wasn't fascist. Maybe you don't know what that word means? (OK, I'm being insulting now, but you started it.)
To sum up, I find your vision of business to be almost completely blind. Sorry for being harsh, but you just performed the all-too-common distillation of real capitalism down into a non-sequitor.
Again, your overreaction is amazing. You say I am blind when I write a simple statement about investement and how patent law provides incentive (and I didn't make it up--try reading some history or economics or constitutional law--these are not old ideas, they were created by people you doubtless would call
the patent system never did help encourage invention
I believe it does. Patents provide security for investors. That means companies have more money to hire more inventors. That means more inventions.
And the major effect of the patent system is to just give more sales (and thus money) to companies that did not earn it, by preventing those who *did* earn it from entering business.
Those are the same companies employing inventors, no? In other words, they are the ones paying for the research and development. Doesn't that mean they did earn it?
but in areas that I am sufficiently ignorant about that I am forced to judge purely on the basis of the idea of patenting as originally envisioned before anyone actually had a chance to see what sort of a mess they produced, patents were a pretty good idea."
Our founding fathers did not invent patents. They had been around quite a while and their effects were well known when the US constitution wisely implemented provisions for patents and copyrights.
I believe that a patent application must include a WORKING implementation of the patented idea. So no, you can't just come up with the idea and patent it without an implementation.
You must have enough information in the disclosure to allow someone skilled in the art to make your invention without having to experiment much. And you must disclose the best possible way you know how to practice the invention.
Also, related to a previous post, if someone is first to solve a given problem, but they only came up with one solution, they can't get a patent broad enough to cover all solutions, only the one they came up with. In other words, if I discover one way to turn lead into gold, I can patent my method, but I should not be able to patent "...turning Pb into Au."
Isn't it also true that you can patent an enhancement to an existing patent? I'm not as sure about this one.
Yes you can patent an improvement to something already covered by a patent. You would not be able to practice your improvement without infringing though. But nothing prevents you getting a patent on it.
Enter the "IP" holding company.... As often (probably more, actually) as not, these "IP" holding companies don't even invent anything. Their sole purpose in life is to suck money out of companies that do invent and build things.
IP holding companies are a natural result of the commoditizing of intellectual property. IP is tradable, therefore traders will arise. This is not evil. It's similar to banking; many people used to think (or still do) that charging interest is wrong, because you aren't doing anything, but you are siphoning money off someone who is. But charging interest is the foundation of our economy and all forms of advanced banking--without interest, there could be no tradable public debt, or private debt for that matter. Without tradable debt, our economy would shrink drastically.
IP holding companies are expected players in the market. If IP weren't tradable, it would be much less valuable. Since it is tradable, we have to expect traders to arise. The only way to prevent it would be to make IP inalienable, and that would end the entire system. (The vast majority of patents are filed with assignment papers.)
Yeah, they`re too busy trying to think of a way to stop their competitors from setting up shop in the EU whilst selling to US customers. And failing.
I am not certain about this, but I think offering soemthing for sale on the Internet subjects you to jurisdiction wherever the buyer accesses the net. So if a CA resident accesses my website and I live in NY, I am subject to jurisdiction in CA. I don't have to show up for the court date, but if I have assets in CA they can render a judgment against me and seize those assets.
So any company wanting to avoid US jurisdiction would have to keep all assets from the US.
Re:corporations can not patent anything
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What has confused you is the overly broad and general requirement for you to assign any and all patent rights to your employer, and to ensure that there is a valid contract, most companies pay you a piddling bonus when the application is filed and another when granted. A company may spend $50,000 to draft a patent, so giving you $500 is nothing. Giving you another $500 when granted is also piddling.
Your numbers are a bit off. No one spends $50k drafting a patent. Try about a tenth that much. And inventor bonuses I have heard of range in the $5k-$10k range.
And you characterize the requirement to assign the patent to the corp as overly broad. I am curious to know why. Such requirements are usually stipulated in an employment contract. Should the corporation hire people, pay them, allow them to use their facilities and other workers to develop ideas then not assign them to the corp? Why would the corp hire a researcher in the first place? Pay them once to develop the idea, then pay them again to buy the idea they already paid the inventor to make? Doesn't sound like good business practice to me.
He filed, as has been stated, very general patents a long time ago. He then used a loophole in patent law which is peculiar to the USA. While a patent in any country usually runs for a number of years from the date of initial filing (typically 20 years), the USPTO allowed an amended filing to get a new filing date, rather than the original one. By repeatedly filing amendments, the patents can last far longer than the intended term.
I dont' know much about Lamelson, but your statement above about continuation practice is not quite complete. You can get a new filing date when you file a continuation in part, but only on the new subject matter that is added. You can't get an older filing date on matter added later, and you can't get a new filing date on material that was already submitted.
Re:How about World Class Trade Negotiation Leverag
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But to know whether the PTO actually inhibits development, you must consider what would happen in its absence. Although there may be anecdotal evidence to support this claim, it's not clear to me that investors would be clamoring to develop new technologies without at least the promise of IP protection.
A quote from IP Worldwide, Dec. 2002:
"Those who doubt the impact of patent protection on the availability of biotechnology funding should look at the infamous Clinton-Blair announcement in 2000. At the time, President Clinton was misquoted as opposing gene patents just as the first draft of the human genome was nearing completion.
"The biotechnology sector lost over $5 billion in market capitalization that day. Even after the President's remarks, it took six months for the biotechnology sector to recover."
Re:Patents've been around since the dark ages, alm
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Instead we have a system run overrun by lawyers who have an incentive to file as many frivilous patents and sue as many people who violate these privilous patents.
* The Little Guys gets Screwed
* The Corporations get Screwed
* Only The Lawyers Win
Do you get it now?
Companies don't like paying lawyers any more than other people. Companies (their patent committees) tell the lawyers what to file for a patent, the lawyers don't decide this. When lawyers file frivolous patents, they are usually rejected and waste the company's money. When frivolous patents do get issued, they are usually invalidated by other lawyers when it comes time to sue for infringement. This also wastes the patent owner's money.
My point is this: You argue that the present system provides incentive for lawyers to file frivolous patents, but you ignore the fact that companies hire these lawyers, and the company tells the lawyer what to file. Companies don't want invalid patents because they are a huge waste of money. This is a natural limit to frivolous patents that arises from market forces. Some questionable patents get a lot of press, but lots of good patents get issued (we're at about 6 million now I think) and they support our technology economy in a good way.
Aside from the market limit to frivolous patents (which you seem to think is totally inadequate), what are you suggesting we do about all these lawyers involved? Get rid of them? You know, there is no law that requires you to hire a lawyer to file your patent. The inventors themselves can draft and file the patent. Why do you think companies spend all that money if they are just getting "screwed?"
Edison is a perfect example. Would he have really been so persistant if he knew he wouldn't be rewarded? Probably not.
His invention was TRUELY novel, one of a kind and would be the catalyst for an explosion of technology.
Unfortunately, the world isn't full of Edisons. Most people's ideas are stupid, obvious or pointless. We want to AVOID rewarding stupid and obvious ideas and some how reward the novel ones, especially when they make it harder for smart people to innovate.
We also don't want to limit patents to only "killer apps" or there would be very few patents issued. You may be setting the bar too high in your example of what should be patentable. Even minor improvements on existing products require R&D. Which requires investment. Which requires protection.
All this is supposed to be balanced out with:
* Intelligent Patent Clerks
* A backup system to nullify obvious/imminent patents when the Patent Clerk fails to indentify obvious/imminent patents. (Let alone prior art)
How exactly would you do this? Add another examination procedure and double the cost of our patents system?
* Adjustable expiration times for classes of technology so as to balance incentive so it does not obstruct innovation.
That is a very good idea. I would argue it is even more imprtant in the area of copyright, since copyrights have been repeatedly extended in length and now cover tools (i.e., computer programs) not expression (e.g., a novel or art).
Although I have to agree with most of the posts. We need to remember that the true evil one here are the members of the legislative branch around the country. Why? Their the ones that allow intellectual property to be patented. Ebay was in the wrong and should pay. They knew the patent existed and willfully violated it. That is the law, unfortunately. And until legislators get their heads out of their butts and turn their brain on, this is the world that programmers and businessman must abide by. Like it or not.
If I had any comprehension of how to "mod" people, I would mod you up, cyclops3590. Everyone bitches at these companies, when all they can do is follow the law to their own best interest. Ultimately, we, the voters, are responsible for what our legislators do. We live in a republic. And we have IP laws. Don't like'em? Let your legislator know it and vote against him/her. Vote green, I'm sure they'd be happy to do away with patents altogether, and not just business methods.
When companies sue, lawyers profit. Looks like a profitable e-commerce business model now exists where the e-commerce business is sued for violating questionable patents. What we really need is for the US Supreme Court to overrule the previous ruling that business practices are patentable. This would ease the burden on the USPTO and quash these law suits.
I agree with your comment that business methods should not be patentable, though the bash against lawyers seems to have nothing to do with the issue or the rest of your post. Duh, of course lawyers profit when companies sue! So what's your point? You think companies should be able to sue without paying lawyers? They can try. No one is required to get legal counsel when they go to court. Companies hire lawyers because they do a better job at suing than non-lawyers. This is healthy self interest at work, along with market forces. And remember, democratically elected legislators write the patent laws. Nothing in the patent laws precludes business methods. How about voting in representatives that will change the patent laws instead of hoping the supremes will do it for them? Laws should be changed by legislators, not judges. IMO.
Slashdot Mirror
I sometimes come here to check up on the goings on at slashdot. Nowhere else do I find such a hotbed of activism and ignorance. It would be entertaining if it weren't so frustrating.
To wit, "...all government activity is only for the rich" is a slight overstatement. And whether you understand or not, property rights are not the embodiment of evil. Not even intellectual property rights. Patent laws in software will help the Indian economy, create more incentive for investment, and ultimately help raise the standard of living in the world's largest democracy.
The fact that this post got a "4: Insightful" means the slashdot ranking system is broken broken broken...
The legal ability to patent your ideas is indeed a right. The US Constitution, source of all our rights in this our secular government, enshrines patents and copyrights for useful arts and sciences.
First, the main article states at one point that if anyone wants to see that the patent monopoly system is broken, just look at Microsoft, the monopolist de jure.
But Microsoft's monopoly is not based in patents. Though they probably patented several aspects of Windows, their monopoly arises from copyright protection of the program, not from patent protection in it.
Second, the article laments that examiners "typically" don't know as much about an invention as the inventor.
Well, duh! The inventor knows more about the invention than anyone in the world, by definition!
Finally, the article argued that it is less work for examiners to just allow an application than to fight it. This, states the article, creates a perverse incentive to allow applications without scrutiny.
But examiners work in a point system. Points must be accumulated to keep your job. You don't get points for allowing patents. You only get points for rejecting them. So the system actually provides incentive to reject all applications, whether they are stupid or fantastic.
I recite these points (note again, the are not in the article linked here at /. but are in the paper issue of Economist) because in my view, the article was skewed. I agree with many of its points--the threshold should be higher for some areas of patenting; business method patents were always a bad idea; allowing third parties to submit art during examination would improve quality of issued patents (though it would definitely make the process more expensive).
However, the article ignored many benefits to patents and approached the issue as though there is no reason to have such limited monopolies. It also based its position on the some flawed points, mentioned above.
AIPLA believes that Congress, and not the PTO or the courts, is the proper authority to consider economic theory and competition policy-oriented principles. For the reasons discussed below, the PTO and the courts should not inject these theories and principles into their decision-making.
They are talking about uncertainty in the law, which is a blight. Uncertainty restrains economic behavior by increasing risk. The statement states that allowing the PTO and courts--rather than congress--to inject economic considerations into their decision-making would be bad, because it would not be in actual legislation, but in rules promulgation--making it ad hoc and slightly arbitrary. But their point is definitely not that patents hurt economic activity. Their point is that uncertainty in rule application would hurt economic activity. And I agree with them.
You also cited the IPO statement:
6. IPO does not support the FTC recommendation concerning considering potential harm to competition in deciding upon the scope of patentable subject matter. 10. IPO does not support expanding economic considerations in patent law decision making.
#6 seems to contradict your position, because the IPO is arguing that considering the scope of patents should not take "potential harm to competition" into account. Your position is based on the idea that patents harm competition. So they seem to directly contradicting you there.
#10 reiterates the AIPLA argument made above, which does not apply to this discussion, as I explained.
"There is no economic law that says "more and stronger exclusion rights per definition result in a healthier economy". And there's also no juridical law that says "lawyers will always defend what's in the best interest of the economy as a whole""
I am not arguing that patent protection should be extended to absurd levels; I haven't even argued the current level of protection is best (I don't think it is--patents in software should be harder to get than currently). I did argue against your point that "software patents do not help the economy and innovation at all."
Case in point: offering one company a monopoly on selling things via the internet, makes investment in all online shopping companies a lot less attractive
Your example monopoly is a bit broad, and would indeed stifle the market; however, patents are not nearly as broad. You essentially describe a patent on the entire industry, an absurd example, and the only one in which your point holds. But the fact that monopolies can be obtained at all provides great incentive to invest in those companies which have monopolies.
Yes, but that's not productive. In fact, every time such a transfer occurs, you extract money from the software business and invest it in lawyers. Something like that is only defensible if the effects on the whole are positive, e.g. if such transfers are necessary to spread knowledge throughout the industry. That is not the case with the software sector (see the studies I pointed you to).
You are focusing on the monopoly aspect, and accurately pointing out the downsides; but you're ignoring the upsides to property rights. The software may never have been written to begin with without an investor to pay the programmer.
And your idea that "every time such a transfer occurs, you extract money from the software business and invest it in lawyers," ignores the fact that the licensee gets to sell the product too--which makes money for the industry and employs programmers. Consider Apple's refusal to license their product. You don't see many Macs around today compared to IBM and its clones. That's because IBM licensed their technology out, while MAC refused to. Licen
Respectfully, I am not sure what organizations you are referring to. It sounds strange, since the whole concept of IP is based on economic incentive.
'but lots of money has gone into developing software *because* of software patents. '
Prove it. Almost all studies I've seen claim that the incentives to innovate in software is competition
Actually, I was talking about investment incentive, not incentives to innovate. Competition indeed promotes innovation. But property rights promote investment.
You also say "almost all studies...." I assume this means you have read some studies that support the arguments for patents in software.
Did you know that enforcing a software patent in court in the US costs between US $1,500,000 and $2,000,000 (if you're lucky)? Same for defeating one in court. How many small companies can afford this, do you think? Those patents are worthless if you can't afford to enforce them.
Litigation is not the only way patents are used. There is a large market in licensing, and lots of money changes hands based on patents without ever litigating. Your argument, respectfully, sounds like this: "Civil tort litigation can cost millions. Therefore we should do away with tort claims." While the current administration in DC is pursuing this logic with respect to medical malpractice torts, I disagree with it.
The point remains that lots of capital goes into software based on property rights. Remove those rights and you will weaken the industry by reducing the amount invested in it. I am not saying it would destroy the industry; but I disagree that patents in software "do not help the economy and innovation at all," as you argue. It seems patently obvious. ;)
The economy is exactly why software patents should exist. Not all large companies may favor software patents (particularly those who have not invested heavily in IP protection); but lots of money has gone into developing software *because* of software patents. It is good for startups too, who can protect an idea and attract capital from investors. Investors like property rights. These facts should not be ignored in any debate over IP rights.
It seems to me that patent rights in software can co-exist with open source. They co-exist now.
This is not exactly right. If they try to enforce a bogus patent that would affect others in the market, like, say, IBM or someone with their own massive patent portfolio, those other amici would submit briefs in order to defend their own interests.
Constructs mentioned in the summarly like stacks and queues are fundamental computer data structures. All programmers have used them at one time in their lives, and will probably need to again.
The patent doesn't prevent use of the things you mention. It only applies in a very limited context. Read the claims. One must infringe ALL the elements of a claim in order to infringe the patent.
This is incorrect. The burden of proof is on the owner of the patent to show infringement exists. I do agree that defending a patent case is costly, but you have the burdens of proof backward.
If MS's and the PTO's history has taught anyone anything, it's that the PTO will grant any coporation a monopoly on any wild ideas they can come up with a complex definition for a patent application, no matter how invalid it might be, and let everyone else clean up the mess they create by granting that application at everyone else's expense.
And MS, well, everyone (but you, it seems) already know they're a monopoly.
The man made a valid point, and you reply with personal attacks? It has been a while since I surfed /., and now I remember why!
1. A method for dynamically displaying pricing data on a client display device comprising:
establishing a communications interface between a client computer and a server computer;
requesting pricing data from the client to the server for at least one object;
generating pricing data with associated options and rules for selection and combination of the associated options for each object at the server;
transmitting the pricing data, associated options, and rules for selection and combination of the associated options from the server to the client;
displaying a first set of pricing results on the client display device;
providing a user interface on the client display device for user interaction with the pricing data and selection and combination of the associated options;
using the rules to prevent a user from encountering a conflict by automatically correcting any conflicts to prevent the conflicts from being displayed during the user interaction with the pricing data, the rules for selection and combination containing all potential conflicts that may occur during the user interaction and corresponding safeguards to prevent the user from encountering and viewing a conflict during the user interaction with the pricing data; and
dynamically updating the pricing data using the client computer to process the update and displaying the pricing data on the client display device in response to user interaction with the pricing data and associated options, and rules for selection and combination.
So many of the objections I find in this forum seem slightly uninformed, because they pick out a single limitation, point to prior art, and call the patent bunk. Though the patent may indeed be bunk, it is not for many of the reasons accepted here.
You are correct, other forms of IP do exist, copyright being the most common. But your appeal to copyright sounds like you are against free software and the GPL. Is that the case? Copyright is a much more common and much more limiting control on software than patents are. Every line of code ever written is under copyright. Only ideas that have never been done before and which are non-obvious are supposed to be patentable. To me, copyright of software is the draconian form of property right. I am also biased against copyrights for software because copyright is supposed to protect expression, and software is much more akin to a tool than expression in my view. And tools should only be protected if they are innovative. We don't give IP protection to other tools like screwdrivers. But software enjoys copyright protection unfortunately because programmers type words when they create it. A judge therefore reasoned that it was expression, and subject to copyright.
Either way, my point was that software requires some form of IP protection. Many on /. disagree with even that basic premise. You seem to accept the need for IP in software. So I think we basically agree.
Except for the part where you say IP is communist/socialist. ;)
This is exactly why there must be some kind of IP protection for software--because writing that first version of it is difficult, time consuming, requires great skill (which requires an expensive education), etc., but copying it is dead easy. So without property rights in software, how can anyone profit from their work?
1. The buyer's incentive is not the reason for patents. Let's take your example a step further: Not only does the buyer no longer have any incentive to pay for transistors (if they can be easily reproduced, like software) but now the guy who invented transistors (and who presumably invested time and money in inventing them) has no way to recoup his investment cost. If, before he made transistors, he knew he couldn't prevent people from easily copying them, would he have wasted his time and money inventing them to begin with?
2. Patents are socialist and communist? Huh? Socialism is when the public (i.e., the government) controls the means of production. Communism involves collective ownership of property. Patents, on the other hand, allow private property rights--which is capitalist, and decidely not socialist or communist.
I read lots of news, including news other than /. posts. Maybe that is why you are confused.
(1) Patents *decrease* security for investors that actually produce products. That is because patents are a legal minefield that nobody can be sure of navigating safely.
Investors rarely produce actual products, so you are talking about a tiny minority. Most of our production (invention) comes from the workers (engineers), not the investors. So your statement that "Patents *decrease* security for investors that actually produce products," [emphasis added] is kind of moot. The vast bulk of our economy is based on corporate activity, and the investors in companies are not "investors that actually produce products." So you sound like you are bashing patents because they aren't designed to make entry into the market by individual inventors easy. Patents are not meant to do that (though they aren't necessarily intended to prevent this either). They exist to get new products to consumers. They do this by making a return on investment more likely--by providing a property right in the fruits of the investment.
(2) The one group of investors that are not at risk from patents are those who invest in patent holding companies. But patent holding companies don't produce anything. They patent ideas, sometimes after they have been invented, or just after the technology to invent them has been developed, and then specifically do not invent it, but wait for it to be invented, and then mug the inventors.
This statement makes no sense, on so many levels. Do you not realize you must invent in order to patent? That you can't patent something someone else invented? You demonstrate a lack of understanding of this subject. I am not usually this critical of people, but you asked for it in your strident reply to me, and with this nonsense you posted.
(3) No, the investors do not earn it. The inventors are the ones who earn it. You seem to have drifted from the concept "it can take money to earn money" to "anyone without money must be prevented from earning money."
Investors don't earn it? Please tell me then, who would employ the engineers without the investors? We need both. And both need incentive to participate.
And how do you equate my statement with this idea that "anyone without money must be prevented from earning money"? That sounds like a knee-jerk reaction to anyone not bashing patents wholesale. And it sounds like you are against the investors making money--like the engineers are the only ones worthwhile in this equation. You are incorrect if that is your view.
In line with this, I should note that you seem to have a flawed concept of business. ...But consistent with our country's slide into fascism, people (including, it seems, you) are beginning to forget any group except the investor and sometimes the customer.
Fascism? You know, looking back, all I posted was, "Patents provide security for investors. That means companies have more money to hire more inventors. That means more inventions."
And you jump in and call me a fascist? Ever heard of capitalism? Maybe you were trying to reply to Adolph Hitler's post (he was a fascist), but got mine by accident? My post wasn't mean or insulting at all. It certainly wasn't fascist. Maybe you don't know what that word means? (OK, I'm being insulting now, but you started it.)
To sum up, I find your vision of business to be almost completely blind. Sorry for being harsh, but you just performed the all-too-common distillation of real capitalism down into a non-sequitor.
Again, your overreaction is amazing. You say I am blind when I write a simple statement about investement and how patent law provides incentive (and I didn't make it up--try reading some history or economics or constitutional law--these are not old ideas, they were created by people you doubtless would call
I believe it does. Patents provide security for investors. That means companies have more money to hire more inventors. That means more inventions.
And the major effect of the patent system is to just give more sales (and thus money) to companies that did not earn it, by preventing those who *did* earn it from entering business.
Those are the same companies employing inventors, no? In other words, they are the ones paying for the research and development. Doesn't that mean they did earn it?
Our founding fathers did not invent patents. They had been around quite a while and their effects were well known when the US constitution wisely implemented provisions for patents and copyrights.
You must have enough information in the disclosure to allow someone skilled in the art to make your invention without having to experiment much. And you must disclose the best possible way you know how to practice the invention.
Also, related to a previous post, if someone is first to solve a given problem, but they only came up with one solution, they can't get a patent broad enough to cover all solutions, only the one they came up with. In other words, if I discover one way to turn lead into gold, I can patent my method, but I should not be able to patent "...turning Pb into Au."
Isn't it also true that you can patent an enhancement to an existing patent? I'm not as sure about this one.
Yes you can patent an improvement to something already covered by a patent. You would not be able to practice your improvement without infringing though. But nothing prevents you getting a patent on it.
IP holding companies are a natural result of the commoditizing of intellectual property. IP is tradable, therefore traders will arise. This is not evil. It's similar to banking; many people used to think (or still do) that charging interest is wrong, because you aren't doing anything, but you are siphoning money off someone who is. But charging interest is the foundation of our economy and all forms of advanced banking--without interest, there could be no tradable public debt, or private debt for that matter. Without tradable debt, our economy would shrink drastically.
IP holding companies are expected players in the market. If IP weren't tradable, it would be much less valuable. Since it is tradable, we have to expect traders to arise. The only way to prevent it would be to make IP inalienable, and that would end the entire system. (The vast majority of patents are filed with assignment papers.)
I am not certain about this, but I think offering soemthing for sale on the Internet subjects you to jurisdiction wherever the buyer accesses the net. So if a CA resident accesses my website and I live in NY, I am subject to jurisdiction in CA. I don't have to show up for the court date, but if I have assets in CA they can render a judgment against me and seize those assets.
So any company wanting to avoid US jurisdiction would have to keep all assets from the US.
Your numbers are a bit off. No one spends $50k drafting a patent. Try about a tenth that much. And inventor bonuses I have heard of range in the $5k-$10k range.
And you characterize the requirement to assign the patent to the corp as overly broad. I am curious to know why. Such requirements are usually stipulated in an employment contract. Should the corporation hire people, pay them, allow them to use their facilities and other workers to develop ideas then not assign them to the corp? Why would the corp hire a researcher in the first place? Pay them once to develop the idea, then pay them again to buy the idea they already paid the inventor to make? Doesn't sound like good business practice to me.
I dont' know much about Lamelson, but your statement above about continuation practice is not quite complete. You can get a new filing date when you file a continuation in part, but only on the new subject matter that is added. You can't get an older filing date on matter added later, and you can't get a new filing date on material that was already submitted.
A quote from IP Worldwide, Dec. 2002:
"Those who doubt the impact of patent protection on the availability of biotechnology funding should look at the infamous Clinton-Blair announcement in 2000. At the time, President Clinton was misquoted as opposing gene patents just as the first draft of the human genome was nearing completion.
"The biotechnology sector lost over $5 billion in market capitalization that day. Even after the President's remarks, it took six months for the biotechnology sector to recover."
Companies don't like paying lawyers any more than other people. Companies (their patent committees) tell the lawyers what to file for a patent, the lawyers don't decide this. When lawyers file frivolous patents, they are usually rejected and waste the company's money. When frivolous patents do get issued, they are usually invalidated by other lawyers when it comes time to sue for infringement. This also wastes the patent owner's money.
My point is this: You argue that the present system provides incentive for lawyers to file frivolous patents, but you ignore the fact that companies hire these lawyers, and the company tells the lawyer what to file. Companies don't want invalid patents because they are a huge waste of money. This is a natural limit to frivolous patents that arises from market forces. Some questionable patents get a lot of press, but lots of good patents get issued (we're at about 6 million now I think) and they support our technology economy in a good way.
Aside from the market limit to frivolous patents (which you seem to think is totally inadequate), what are you suggesting we do about all these lawyers involved? Get rid of them? You know, there is no law that requires you to hire a lawyer to file your patent. The inventors themselves can draft and file the patent. Why do you think companies spend all that money if they are just getting "screwed?"
Edison is a perfect example. Would he have really been so persistant if he knew he wouldn't be rewarded? Probably not. His invention was TRUELY novel, one of a kind and would be the catalyst for an explosion of technology. Unfortunately, the world isn't full of Edisons. Most people's ideas are stupid, obvious or pointless. We want to AVOID rewarding stupid and obvious ideas and some how reward the novel ones, especially when they make it harder for smart people to innovate.
We also don't want to limit patents to only "killer apps" or there would be very few patents issued. You may be setting the bar too high in your example of what should be patentable. Even minor improvements on existing products require R&D. Which requires investment. Which requires protection.
All this is supposed to be balanced out with: * Intelligent Patent Clerks * A backup system to nullify obvious/imminent patents when the Patent Clerk fails to indentify obvious/imminent patents. (Let alone prior art)
How exactly would you do this? Add another examination procedure and double the cost of our patents system?
* Adjustable expiration times for classes of technology so as to balance incentive so it does not obstruct innovation.
That is a very good idea. I would argue it is even more imprtant in the area of copyright, since copyrights have been repeatedly extended in length and now cover tools (i.e., computer programs) not expression (e.g., a novel or art).
If I had any comprehension of how to "mod" people, I would mod you up, cyclops3590. Everyone bitches at these companies, when all they can do is follow the law to their own best interest. Ultimately, we, the voters, are responsible for what our legislators do. We live in a republic. And we have IP laws. Don't like'em? Let your legislator know it and vote against him/her. Vote green, I'm sure they'd be happy to do away with patents altogether, and not just business methods.
I agree with your comment that business methods should not be patentable, though the bash against lawyers seems to have nothing to do with the issue or the rest of your post. Duh, of course lawyers profit when companies sue! So what's your point? You think companies should be able to sue without paying lawyers? They can try. No one is required to get legal counsel when they go to court. Companies hire lawyers because they do a better job at suing than non-lawyers. This is healthy self interest at work, along with market forces. And remember, democratically elected legislators write the patent laws. Nothing in the patent laws precludes business methods. How about voting in representatives that will change the patent laws instead of hoping the supremes will do it for them? Laws should be changed by legislators, not judges. IMO.