Patents are not a piece of property.

Patents are a government granted monopoly over ideas.

As long as folks like Gulbrandsen and youself can’t see the distinction, you’ll keep scratching your heads over this issue. “The People” are a bit fed up with these monopolies being handed out by beauracratic fiat, and we’re a bit fed up with the arbitrary nature of the process, and we’re a bit fed up with how much power is weilded by holders of dubious patent monopolies covering obvious ideas.

“Patent Troll” is a tame term. If you don’t like it, I’m sure we can come up with something more, er, descriptive.

Ted:

Like it or not, patents ARE property. You can buy and sell them just like a piece of real estate or equipment.

Abraham Lincoln once said: “The patent system added the fuel of interest to the fire of genius.”

Lincoln was right. Our patent system whereby inventors are encouraged to show HOW they did it in exchange for a piece of property granted by the government giving them the right to exclude others from making, using or selling an invention (not an idea) for a limited time is HOW this country became the technological powerhouse it did. Without a patent system such knowledge is kept as trade secrets and industry doesn’t benefit. Like it or not, the patent system “open sourced” knowledge.
While your use of such knowledge is limited to non-infringing uses, it is information you would have not had should the inventor chosen to keep it as a trade secret.
To get a patent, the invention is supposed to be novel and non-obvious. If such inventions are so “obvious” then they won’t stand up in court and that will be that. If you think they are obvious…prove it. Put up or shut up. Anyone who gets sued for infringement is desperately looking for prior art. Help them out.

If you want to be productive in fixing this “beaurcratic fiat”…figure out how to help the Patent Office understand the prior art that is out there that makes such inventions so “obvious.”

Otherwise you’re all talk. blah blah blah

Hey Bob,

Average cost of defending oneself against a patent infringement lawsuit: $10 million.

How many small businesses (or independent tinkerers) do you think can afford that?

A patent gives the holder an extremely unfair advantage, especially if the patent should never have been granted. And, unfortunately, most patents should never have been granted. Even many of those that do withstand a legal challenge, should not.

The reason that our legal system has elevated the status of patents to be equivalent to real property (which is an extreme absurdity) is because moneyed interests have been pushing the system in that direction for decades. And they continue to push. Soon, you and I won’t have many rights over the power to think — corporate America will own most of the ideas. Ah well, I guess we can all just watch TV instead of inventing (unless employed by Mr. Corporation, in which case we will be allowed to invent, as long as we give all the fruit of our labor to Mr. Corporation).

The system sucks. You don’t need to lecture me on the ideological utopianism of what the patent system is *supposed* to encourage. Anyone looking objectively at the facts can see it has become as corrupt as any other tyranical power out there.

“Otherwise you’re all talk. blah blah blah”

Those who use phrases like this have only one goal in mind: to stifle discussion that could bring about useful reform.

Let me turn it around by pointing out that our current patent system is about nothing more than talk. You don’t have to do a damn thing to get a patent, other than talk talk talk talk (by filing forms, submitting paperwork, and arguing with an examiner). Likewise, enforcing your patent “rights” is all about talking: yapping to the judge, yapping to your lawyer, lawyers yapping to a jury. Talk talk talk.

I’d much prefer to spend my energy inventing. Unfortunately, I have to watch my back and worry that some asshole has patented the act of picking up a hammer, typing on a keyboard, etc, etc, etc.

Ted:

Great discussion…thanks for kicking it off. I’m sure it comes as no surprise…we disagree a bit on a few things.

“A patent gives the holder an extremely unfair advantage…” Yes, indeed it does create an advantage. By design. The patentee (or his assigns) reaps the benefit of disclosing the invention to the public. Is it an “extremely unfair” advantage? Possibly. But guess what – fairness is not a part of the equation. The inventor gets the reward. Period.

It’s like I’ve been telling my four year old son in his hockey practices…You may think the rules are unfair, but they have them for a reason. Don’t whine about what’s fair and what isn’t…just get better at the game. He understands the concept.

“…especially if the patent should never have been granted…” I assume you’re talking about invalid patents and not some subjective standard for “should never have been granted.” I agree…invalid patents are a problem. But, they’re also unavoidable. Unless we develop a system that provides the Patent and Trademark Office with perfect knowledge of the relevant prior art for every single patent application filed, we must live with a percentage of invalid patents. We should focus our efforts and resources on minimizing the number of invalid patents that issue. How? Well, to start, we could help the Patent Office gain better access to art, through more funding, better technology, or both. As a bonus, we could help devise a system that allows the public to present relevant art to the Examiner for a particular patent application. Two simple ideas that, if implemented, could do wonders for patent quality and the cloud of dread that follows the naysayers everywhere they go.

Despite your caution, I’m not fearful that I soon won’t have many rights over the power to think. A patent does not give anyone any control over anyone’s ideas or their ability to think. The proposition that patents carry such power is borderline absurd. Here’s an example….One of my favorite technologies is Tivo. It’s genius — a simple and elegant solution to a real world problem. I’ve thought about that technology quite a bit…even devised some improvements of my own. Did some evil corporate attorney come into my bedroom late at night and bash me over the head as I was thinking of these improvements in a spat of insomnia. Nope. Funny thing…no one stopped me from thinking about such ideas. I was (and am) free to think and invent to my heart’s content. Now, if I were to build my improvements….I might infringe a patent or two (or twelve), and I might have to pay a royalty or two (or twelve) if I decide to sell the product. Seems fair to me, though, as Tivo has already done the heavy lifting in creating a market for a brand new technology that didn’t exist a few years ago. Heck, if the profit motive is large enough, I may just decide to challenge the validity of those patents. My option.

Oddly enough, if I was serious about building my device, I might even try to design around the Tivo territory. What a strange and beautiful concept…the patent gives Tivo protection…and, at the same time….almost magically, it incentivises me, as the Johnny-follow-on that I am, to develop new ideas that avoid the patent(s). Don’t trivialize that great achievement of policy as “idealogical utopianism”…it’s real. It happens all the time. It works.

The system doesn’t suck. No…it’s a long way from sucky. It’s actually beautiful. Yes…I said it…it’s beautiful. I’ve seen it work. I’ve seen innovators stare at protected territory and develop completely new products in an attempt to avoid infringement. It’s beautiful because all of us benefit from those efforts, even the naysayers out there. It’s beautiful because it gives the garage inventor the power to force a Goliath infringer to the bargaining table. It’s beautiful because someone like Dean Kamen can make a living as a professional inventor, and I can tell my son that he could do the same if he chooses. It’s beautiful because it recognizes that an invention can be simple and need not be a quantum leap forward. It’s beatiful because it works.

Don’t get me wrong…we do have problems. I just tend to believe that we’d be better served by fixing some issues at the patent office instead of trying to fundamentally gut the property right that has been instrumental in building our great culture of innovation.

The system sucks. I’ve seen it ruin innovative startups. I’ve seen it impede independent inventors. And I’ve seen it stifle academic and scientific research. But you don’t have to take my word for it — examples of the above abound.

Your anecdotal evidence of the system working to protect innovators and reward inventors doesn’t offset the tremendous damage done when the system doesn’t work. And it increasingly doesn’t work.

As for not arguing about the rules, I don’t see how that is relevant. Once again, your statement harks back to the idea that any debate about the rules should not take place; that we should stifle all discussion on the matter because thems is the rules and thems is the rules.

Well, I think the rules is broken. And I’m not alone. The system is in dire need of reform. If it doesn’t happen, its oppresive nature will inspire not just reform, but outright revolution. Either way, things is going to change. No more high-sticking.

Take care,
Ted

Matt — I posted a followup yesterday. What happened to it? I’m assuming you got a chance to ‘review’ it since you have published more posts in the intervening time…

…okay, I was just to eager to see my post. Thanks for updating!

universities as patent trolls – part 2

Well, when you are wrong – the best thing to do is to acknowledge the error and applaud the person who pointed it out to you. Well, kudos to Lawrence Ebert at the IPBiz blog who spent some time talking…

Hey, Bob!

Repeating something again and again does not make it so. I would suggest you read the language in the Constitution.

As much as a few large corporations would like to complete the engagement of Property Laws in the World of Patents, trademarks and Copyrights, it just won’t work.

But I will make one small concession:

Trademaks perhaps could be considered as property. At least they are durable

But the real issues come up when you have people how say things like:

“Don’t get me wrong…we do have problems. I just tend to believe that we’d be better served by fixing some issues at the patent office instead of trying to fundamentally gut the property right that has been instrumental in building our great culture of innovation.”

This is demonstrably WRONG. Read Michael Perelman’s Book Steal This Idea and tell me that he doesn’t make a very convincing case the compulsory liscencing greatly speeded the arrival of radio as a consumer item. Or the fact that IBM opened the standard for a PC in building that market.

We need to get past the really GREAT BIG LIE that the current patent and copyright regime foster innovation.