Innovation Is An Ongoing Process -- Not A Single Event

from the things-to-think-about dept

It's no secret that we believe the existing patent system has some serious faults that have resulted in holding back aspects of innovation, rather than putting in place incentives for it (which is the entire point of the system, as put forth in the Constitution). There have been a few people who vehemently disagree with us -- and it's always interesting to us to try to figure out where the views diverge. There are two main points that we see. First, is a disagreement over what innovation is. As we've noted in the past, there's an important difference between innovation and invention. Invention is just about coming up with the concept. Innovation is about successfully taking a product to market. Traditionally, our culture has celebrated the "invention" -- but the innovation is what makes the invention worth celebrating. Given that it's that innovation part that actually helps grow the economy, it makes sense that innovation is more important than invention. Unfortunately, though, the current patent system is designed to reward invention, not innovation.

However, there's another, related, point where the conversation often breaks down: the idea that innovation is an ongoing process, rather than a single event. Supporters of the current patent system seem to assume that innovation is a single event -- and that event needs to be protected with the patent. The reality, however, is that innovation is an ongoing process. That's why we've said in the past that the idea of a sustainable competitive advantage is a myth. Companies compete by a series of fleeting competitive advantages. That's what innovation is. Even if your competitors can copy you, you keep on innovating and keep the lead in your market. The claims from strong patent system supporters always comes back to the idea that, without patent protection, others would just "steal" their idea. But, that's only true if the original innovator stops innovating and tries to rest on its laurels. That's not good for anyone -- but it's exactly what patents allow. In fact, there's increasing evidence of this exact problem with the patent system. David Levine points us to a new peer reviewed paper on "sequential innovation", which looks into this very issue and finds that, since innovation is such an ongoing process, patents tend to harm inventors more than help them. The report shows that if (as patent system supporters believe) innovation is a static event, then the patent system does make sense. However, since it's an ongoing process, patents tend to hurt more than help. In fact, they find that inventors tend to profit more without patent protection, but by focusing on the increased competition and the ongoing innovation. While they may not have been able to profit as much from the single event of invention, the increased innovation as an ongoing process means they end up profiting more in the long run by supplying increasingly better products to a growing market. Meanwhile, in cases where patent protection was increased, the research shows that investment in innovation actually decreased. This makes sense to us, but it's good to see it supported with research (which, if history is any guide, patent system supporters will ignore). However, it does help highlight how much of the disagreement may simply be due to a lack of understanding concerning the difference between the event of invention and the ongoing process of innovation.


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    Negaveck, May 12th, 2006 @ 2:15am

    Good points

    There are many good points brought up here but a few left out. Mainly patents being appoved for things that are covered (appropriatly) by copyright law (not that copyright law is in any better state).

    Also, about the whole innovation being more important than invention topic, I disagree to a point. Ask people who was a better inventor Edison or Tesla. Most will say Edison. Tesla was a much better inventor than Edison, however he was a poor buisinessman. He was not a capitalist and thus was not as concerned over profiting from the innovation as he was getting the invention made and available. I would have to agree that as Edison is much widely accepted as an inventor than the innovation (bringing the product to market) is considered mroe important. I don't feel that this is always the case. If the inventor is simply making a product to "make the world a better place" and not to make money, than the invention should be more important than successfully bringing it to market and innovating it (from the inventors point of view)

    Tan again I could be wrong

     

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      Mike (profile), May 12th, 2006 @ 3:03am

      Re: Good points

      If the inventor is simply making a product to "make the world a better place" and not to make money, than the invention should be more important than successfully bringing it to market and innovating it (from the inventors point of view)

      However, in that situation (again), what good does a patent do? If they're not concerned with making money and they just want to make the world a better place, then it would seem that patents make no sense at all. They can simply invent, release the invention to the world -- and let the world innovate. And, once again, at the societal level, the innovation is more important. There's no loss for the inventor since, as you claim, he's not interested in money, but making the world a better place.

       

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        angry dude, May 12th, 2006 @ 7:45am

        Re: Re: Good points

        Mike said: "There's no loss for the inventor since, as you claim, he's not interested in money, but making the world a better place".

        Mike, you clearly have a judgement problem.

        Every inventor is a REAL person, not some abstract entity.
        As a REAL person living in a capitalistic socienty, inventor has to provide for his family, to pay the rent or mortgage, to pay his bills for Christ sake...

        In this country (US) you have to pay cash for all things you or your family needs.

        But for some reason, you seem to believe that inventor should be spending his time and effort (not to mention his own money) coming up with new technologies and then let the rest of the world use those new technologies for free, without ever paying a dime back to the original inventor...

        Do you really think that inventing is easy and that real inventors do it just for fun and not for profit...
        Maybe some independently wealthy inventors can afford to do it just for fun, but the rest of us just can't.
        We want to see some real CASH for our new and useful inventions, cause only cash pays your bills so you can continue to live and invent...

         

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          Don, May 12th, 2006 @ 8:43am

          Re: Re: Re: Good points

          Mike, you clearly have a judgement problem.

          I don't find him to have a judgement problem. In fact his views are very much in line with an older, mature Benjamin Franklin. Franklin purposefully refused to patent his "Franklin Stove" for the very reasons Mike has opinionated.

          Admittedly, by this point in his life he'd grown his printing business through hard and dilligent work to the point where he was financially well off to the point he had the luxury to do this. However, he could have been greedy and said being "financially secure" wasn't enough, he wanted to milk the system for all the money he could. But unlike others like Bill Gates, making the world a better place was more important to him than being richer than God.

          And while others most assuredly made money off his invention as well, he seems to have made a decent penny off his invention because it reached a far larger audience than it otherwise might have if he'd limited distibution. Not to mention making his name a more well known household name (which can be equally as profitable).

           

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          Mike (profile), May 12th, 2006 @ 9:48am

          Re: Re: Re: Good points

          Angry dude,

          You should read what I was actually responding to. I never said that inventors shouldn't make money and just be happy. I was simply responding to the specific case set up by the first commenter. He set up that case, saying it was a situation where my argument didn't make sense. So, I assumed his argument was true, and started from there.

          I agree that it's a rare situation, but I was just responding to that.

          I do not believe that it is normally the case at all. And, if you read the actual post, you'll see that this research makes it very clear that the inventor can profit more without patents.

           

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    Rob Scott, May 12th, 2006 @ 9:03am

    Marxism

    An example of deconstructionism (a popular tool of the left) is to pervert language. Mike does it here by "inventing" a definition of innovation as bringing a product to market. This is an example of the kinds of fundamental flaws that Mike's writing is full of. And to assert that innovation is more important than invention is sloganesque in that it sounds good but is really meaningless and is designed to validate infringing activity as something good or desirable.

    Mike's arguments, as are most all patent bashing arguments found here at Techdirt, are thinly veiled Marixst arguments in line with "the ends justify the means." If someone comes to market first, even if they are using technology innovated by someone else, then they should be allowed to reap the benefit. Pure Marxist hogwash and exactly the reason for patents.

    The idea that the purpose of inventive activity should give is special status is even more clearly leftist.

    Mike, as do most leftists with an elitist mindset, believes himself to be superior to everyone even practicing patent attorneys. But the fact is, there are some serious flaws in his entire framework of thinking.

    Stay tuned for his breathless attack...

     

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      Mike (profile), May 12th, 2006 @ 10:01am

      Re: Marxism

      Rob,

      First of all, I'm glad to see that you are willing to post under your own name again, rather than resorting to some pseudonym. However, I'm disappointed that you chose (1) not to talk about the issues and (2) to focus on an argument that you used a few months ago, and which has been widely discredited.

      An example of deconstructionism (a popular tool of the left) is to pervert language. Mike does it here by "inventing" a definition of innovation as bringing a product to market. This is an example of the kinds of fundamental flaws that Mike's writing is full of. And to assert that innovation is more important than invention is sloganesque in that it sounds good but is really meaningless and is designed to validate infringing activity as something good or desirable.

      Note that he doesn't address the actual issue here, but simply says my argument is sloganistic. Unfortunately, if you read the actual article, you see that the points in the article are backed up by very detailed research. So, no, I didn't simply make it up. I back it up.

      Mike's arguments, as are most all patent bashing arguments found here at Techdirt, are thinly veiled Marixst arguments in line with "the ends justify the means." If someone comes to market first, even if they are using technology innovated by someone else, then they should be allowed to reap the benefit. Pure Marxist hogwash and exactly the reason for patents.

      This is the more amusing of Rob's comments, and we've already shown why it's both silly and false. First, he pulls out a label, rather than address the issue. Also, anyone who actually reads the points I make will note that they're all based in free market economics -- which is generally considered pretty much the antithesis of Marxism. For those of us who believe in the free market, we believe (and the research supports) that the market is the reward mechanism that encourages innovation. So, yes, those who bring the product to market do deserve the reward -- and the market rewards them.

      Oddly, Rob's position seems to be that the government should grant a monopoly to someone -- which is generally more associated with socialist, planned economies.

      What's surprising (or perhaps not) is that all of the economics behind the point are clearly laid out, and they're obviously free market economics. So, it's hard to see where his claim of Marxism comes from. It seems to only come from the idea that if someone disagrees with him, he must be a Marxist.

      However, if he can point out to me what about our free market explanation is Marxist, I'd be glad to look into it.

      Mike, as do most leftists with an elitist mindset, believes himself to be superior to everyone even practicing patent attorneys. But the fact is, there are some serious flaws in his entire framework of thinking.

      Again, I'm not sure where "leftist" or "rightist" comes into this. The argument is neither. It's simply an economic analysis done by economists. Also, I do not believe myself "superior" to practicing patent attorney (which Rob is, of course). However, as I have explained to Rob, this is an economic analysis, not a legal one. And it is supported by plenty of people, both lawyers and economists alike.

      Of course, you will note that Rob's comment does not once address the actual research paper that we put forth that supports what I have said.

      Rob, thank you again for choosing to debate this under your real name. I appreciate that. However, I would ask that in order to debate this civilly, it would be better to leave aside the labels and focus on the issues.

       

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    angry dude, May 12th, 2006 @ 10:18am

    Mike wrote:"And, if you read the actual post, you'll see that this research makes it very clear that the inventor can profit more without patents."

    yeah, sure, inventor can probably profit more (at least in a short term) without patents - by using trade secrets to hide all the details of invention for as long as possible.

    After all, what do you gain by disclosing all the details in your patent application so that all the copycats can immediately start including your invention in their products ? Only the right to sue infringers, if you can afford it, which you don't...
    Yeah, to hell with patents, back to middle ages.
    Let's have trade guilds with highly guarded secrets.

    Then the technical progress stops of course, but who cares, as long as people of techdirt are happy without stinking patents...

     

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      Mike (profile), May 12th, 2006 @ 11:30am

      Re:

      yeah, sure, inventor can probably profit more (at least in a short term) without patents - by using trade secrets to hide all the details of invention for as long as possible.

      Actually, if you read the research, it shows the opposite is true. You may profit less in the short term, but you tend to profit more in the long term.

      Then the technical progress stops of course, but who cares, as long as people of techdirt are happy without stinking patents...

      Again, history has proven this is a false assertion. There are plenty of examples where innovation and technology progress increase when the patent system has been removed, and then decreased when it was put back.

       

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    Rob Scott, May 12th, 2006 @ 10:25am

    Raison d'etre

    Goverments exist to protect property rights, in which patents are included.

    Mike (who apparently is obsessed with me) chooses to ignore legitimate patent rights, again, in favor of a classic Marxist, "ends-justify-the-means" arugment to trample them plus bald gratuitous assertions that the theories are backed up with reasearch (with no actualy citations or quotes). This is the same person who would rather have persons from industry opine on obviousness rather than force the patent office (or third parties) to produce actual publications.

    In places in Asia, there are people who are first to market with pirated products which infringe a number of intellectual property rights. Apparently Mike is in favor of this activity which is now criminally sanctioned by the U.S. Government.

     

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      Mike (profile), May 12th, 2006 @ 11:36am

      Re: Raison d'etre

      Goverments exist to protect property rights, in which patents are included.

      This is, again, a tautological argument. It's a true because it's true. But it need not be true. The important point is to look at the purpose of the patent system, which is to promote innovation. If it is not promoting innovation, then it should be changed. The economic arguments suggest that it may not be promoting innovation. Focusing on the property rights issue misses the point.

      Mike (who apparently is obsessed with me) chooses to ignore legitimate patent rights, again, in favor of a classic Marxist, "ends-justify-the-means" arugment to trample them plus bald gratuitous assertions that the theories are backed up with reasearch (with no actualy citations or quotes). This is the same person who would rather have persons from industry opine on obviousness rather than force the patent office (or third parties) to produce actual publications.

      Rob, if you click through on the links, you will see the research. I was assuming that most of my readers understood how the web works.

      The second point, that I "would rather have persons from industry opine on obviousness rather than force the patent office to produce actual publications" is said with disdain, but you don't explain why that's disdainful. The patent system is based on the standard that any patent need be "non-obvious to those skilled in the art." Therefore, the test is clear. Asking people from the industry to opine on the obviousness is the prescribed test. You have yet to show why that's disdainful.

      In places in Asia, there are people who are first to market with pirated products which infringe a number of intellectual property rights. Apparently Mike is in favor of this activity which is now criminally sanctioned by the U.S. Government.

      A total non-sequitor, and has nothing to do with the points at hand.

       

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    Rob Scott, May 12th, 2006 @ 10:28am

    Marxism

    “The end does not justify the means. No one’s rights can be secured by the violation of the rights of others.”

    Ayn Rand in The Anti-Industrial Revolution:

     

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    Jay, May 12th, 2006 @ 10:37am

    Not as angry, but...

    There is something in Angry Dude's comment. The spirit of the patent system was originally to allow the publication of the invention while at the same time protecting anteriority.

    The reasoning is that some inventors might have had brilliant ideas, but without the means for bringing those ideas to the market and publicize them, and ultimately get their fair share. Good inventions, if published without protection, would allow someone else with more "muscle" to market them and profit from them, without rewarding the original inventor.

    Now the problem is that this set of assumptions is outdated for modern-day economics and information bandwidth. While I agree that the patent system (especially the US patent system) needs a major overhaul, I don't think the concept of patents in itself is fundamentally hampering innovation.

     

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      Mike (profile), May 12th, 2006 @ 11:43am

      Re: Not as angry, but...

      Jay,

      This is a valid point of discussion. The issue of whether or not patents help by publishing the ideas is a good one, though even you admit much of that concept is outdated.

      Anyway, to be clear, despite what angry dude and Rob Scott claim, I am NOT against the entire patent system. I am, however, a believer in free market economics -- and that tells me that government involvement and regulation only makes sense in cases of market failure. What we've seen repeatedly is that the market seems able to handle most of this on their own.

      Where there is a market failure in terms of promoting innovation, then I could see where patents make sense.

      What I am trying to do with this post, in particular, is highlight new research that supports the idea that in most cases there is no market failure that requires such protection -- and thus, it is more inefficient, and very much against a free market economics viewpoint.

      However, I do appreciate you raising the issue -- but increasingly the evidence is showing that the patent system is hampering innovation much more than it is helping it.

       

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    Rob Scott, May 12th, 2006 @ 10:44am

    Marxism - part duh

    Karl Marx famously asserted that property is theft. Mike asserts that enforcement of patent (property) rights is extortion (theft). Therefore Mike (perhaps unknowingly or even unwillingly) is promoting Marxist dogma.

     

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      Mike (profile), May 12th, 2006 @ 11:39am

      Re: Marxism - part duh

      Karl Marx famously asserted that property is theft. Mike asserts that enforcement of patent (property) rights is extortion (theft). Therefore Mike (perhaps unknowingly or even unwillingly) is promoting Marxist dogma.

      Again, focused on labels rather than issues. However, it's a really really weak attempt at linking our views to Marxism. As we've pointed out repeatedly (and which Rob still ignores) every one of our points is backed by free market economics.

      The problem with his link above is to associate intellectual property with tangible property -- when the two are clearly different, exhibit different economic properties and even have very different laws applied to them.

      Patents are not the same as physical property. Hell, by Rob's argument (and I'm only making this assertion to show just how silly his original assertion is), Lincoln was a Marxist in freeing the slaves (who were considered property at the time).

       

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    angry dude, May 12th, 2006 @ 11:46am

    "Actually, if you read the research, it shows the opposite is true. You may profit less in the short term, but you tend to profit more in the long term."

    Which research are you citing ? Name the source.

    "Again, history has proven this is a false assertion. There are plenty of examples where innovation and technology progress increase when the patent system has been removed, and then decreased when it was put back."

    Again, name the source for such a conclusion.
    (Just not the crap about Switzeland in 18.. something you used to quote here, which is completely untrue by the way)

     

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      Mike (profile), May 12th, 2006 @ 11:54am

      Re:


      Which research are you citing ? Name the source.


      For someone who keeps saying how much more intelligent than us you are, I would have thought you could have followed some links. However, here you go:

      http://www.econ.ucla.edu/workshops/papers/IO/BessenMaskin5.8.pdf

      Again, name the source for such a conclusion.

      Well, first off the case in Switzerland does prove the point, but since you don't like that one, how about the pharmaceutical industry in Italy. Again, I shouldn't need to point out the specific papers on this, but prior to the Italian pharma industry having patent protection, the pharma industry was thriving. It was one of the largest in the world and a big exporter as well. And, despite what you'll claim, it wasn't from copying other drugs, either, but from continually innovating on new and useful drugs.

      In 1978, due to pressure from competing pharmaceutical companies who were not based in Italy, they added patent protection. Since that time, the Italian pharmaceutical industry has shriveled -- mainly because companies used patent protections to slow the market and rest on their laurels, rather than continually innovating to serve the market.

      This is just one example that disproves your point that patents are needed for innovation. Since your claim is an absolute, it only needs a single fact to disprove, though, there are more examples as well. However, I don't see why I need to do all of your research for you.

       

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    Rob Scott, May 12th, 2006 @ 11:48am

    Not the test...

    This is why people insult you. You breathlessly put forth as fact something that is simply not the case.

    You keep saying that the obviousness test is "asking someone from industry about obviousness" when this is clearly NOT the test. The test for obviouness is whether art (evidence) can be produced that PROVES something is obvious as of a certain effective date.

    Thus the "art" must in all but the rarest instances must be in a printed publication form including patent publications (patents, published applications) FROM ANYWHERE IN THE WORLD. Also, as I have also mentioned to you, third parties can easily participate in the process by submitting art (subject to quantity restrictions) along with a fee during the prosecution of a published application.

     

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      Mike (profile), May 12th, 2006 @ 11:58am

      Re: Not the test...

      This is why people insult you. You breathlessly put forth as fact something that is simply not the case.

      Breathlessly? Interesting.

      You keep saying that the obviousness test is "asking someone from industry about obviousness" when this is clearly NOT the test. The test for obviouness is whether art (evidence) can be produced that PROVES something is obvious as of a certain effective date.

      This is false, but it sounds nice. The basis of the patent system is "non-obvious to those skilled in the art." You have yet to explain why actually asking those people doesn't make sense.

      Instead, you conflate two different ideas: "obviousness" and "art." For something to be obvious, there need not be prior art. It could simply be the natural progression of the state of the art. Often this is seen in similar competing products hitting the market at the same time. In such a case, there seems to be no rational support for patents, since clearly the competition in the market has driven the innovation.

      What good does a patent do in that case, other than to restrict the market, lessen choice, and allow one company to rest on its laurels rather than continue to innovate?

       

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    Rob Scott, May 12th, 2006 @ 11:50am

    You go dude

    I also have a problem with Mike's standard of "evidence." He talks about tautology, but his idea of proving something is:"its true because there is a ton of research on it..." So Mike wants to change the obvious standard to: "its obvious because I heard someone from industry did it"...

     

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    Rob Scott, May 12th, 2006 @ 11:58am

    Mike stayed in a Holiday Inn last night

    What I really like is Mike telling me what the standard is...

     

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      Mike (profile), May 12th, 2006 @ 12:05pm

      Re: Mike stayed in a Holiday Inn last night

      What I really like is Mike telling me what the standard is...

      Rob, are you denying that the patent system is supposed to only protect inventions that are non-obvious to those skilled in the art?

       

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    Rob Scott, May 12th, 2006 @ 12:27pm

    Big word

    Conflate? How long have you been waiting to use that word in a sentence?

    You simply have it wrong. While a person of skill in the art is a component of obviousness, you have it completely and utterly wrong. First of all you're leaving out "at the time the invention was made." The only way to determine whether the invention was obvious to a person of skill in the art factually, is to have a publication proving it. For conferences, proceedings of the conference will do. For a presentation given in some sort of symposium, some sort of paper proving that the disclosure took place will do. There are other possibilities, but a "publication date" must be provided. Other than that, sorry.

    I'm not trying to brag or be insulting here, but unless you have a mental problem, I don't know why you insist on pushing something that is simply untrue to someone who actually knows.

    First of all you keep quoting "non-obvious to those skilled in the art" but I'm not sure where you're getting your quote. And besides, its doesn't really make sense to bicker about it in this high tech world when we can just cut and paste from the LAW:

    Excerpt from 35 USC 103
    "a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains" (emphasis added by me)

    For a definition of what qualifies as prior art, there is a suprising array of material which can be submitted, however, as I noted above, everything must have been published and must have a provable publication date. So if someone produces a private manifesto from 1899 that was sitting in a drawer, which detailed a wireless email system, it could not be submitted as "prior art."

     

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      Mike (profile), May 12th, 2006 @ 12:42pm

      Re: Big word

      Again with the insults Rob? I have yet to see a comment from you that does not question my intelligence. It's really unbecoming of a practicing lawyer.

      Anyway, I'm glad that you are finally pointing out actual information, but again, you are mixing up two ideas. One is the basis on which the patent system has been designed to work (only granting patents for non-obvious items) and the other is the way the system is currently set to achieve that.

      I think most people agree that the non-obvious standard makes sense. If you don't, that's a different issue -- which we can discuss separately.

      Where we disagree is on how that test should be applied. You point to the law as written, which is accurate, but that doesn't mean that it's the way it should be. The point that I (and plenty of others) have made is that simply using prior art is a bad way to test obviousness, because it is inaccurate. For support on this, I'll even point to an amicus briefing filed by the Progress & Freedom Foundation -- a group I pretty much disagree with on everything about, but who seem almost exactly aligned with you.

      http://www.pff.org/news/news/2005/051305ksramicus.html

      They point out that the current obviousness test is problematic and harms the patent system. I'd be amazed if you tried to call PFF "Marxist" or "anti-property" as their entire reason for being is to be pro-property rights -- and especially strongly when it comes to intellectual property.

       

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    Rocket Scientist, May 12th, 2006 @ 1:32pm

    Now I'm no rocket scientist

    Ok, well maybe I am, but I don't understand Mike's post directly above at all...

    As best I can understand it, Mike says we shouldn't use publications, that publications are a bad way to test obviousness. Instead we should get a bunch of people together to give their opinions. Sure that would be WAAAY better. Like a monkey with a sledgehammer.

     

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      Mike (profile), May 12th, 2006 @ 1:55pm

      Re: Now I'm no rocket scientist

      Rob, I'm disappointed that you've chosen to go back to using pseudonyms.

      As best I can understand it, Mike says we shouldn't use publications, that publications are a bad way to test obviousness. Instead we should get a bunch of people together to give their opinions. Sure that would be WAAAY better. Like a monkey with a sledgehammer.

      That's not what I said, and I apologize if it was unclear. Notice that, unlike you, I do not simply insult your intelligence when you misunderstand me.

      The two things, looking at the obviousness of an idea and looking at the prior published art are not mutually exclusive. I do not believe I ever implied they were. You, however, seem to think I have implied that. I apologize for the misconception.

      The idea is that both types of information are useful in determining the validity of a patent.

       

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    Rocket Scientist, May 12th, 2006 @ 1:43pm

    Amicus

    For those interested, the amicus brief noted by Mike deals with a very narrow circumstance in which two clearly obvious prior art technologies are joined. Apparetnly, the legal record, lacking any extrinsic indicia of non-obviousness (e.g. long felt need...), supported the action that the patent was nevertheless issued. It appears to me that in this narrow circumstance 1) the Examiner was unwilling to file an affidavit (as is his perogative) as to the application of his personal knowledge that the combination would have been obvious and/or 2) the patent attorney failed to make the argument for secondary factors, e.g. that the combination was previously uncontemplated for whatever reason.

    Sorry, Mike, the above brief does not stand for your proposition that prior art is inaccurate, that prior art is a bad way to test obviousness, or any of the other wild eyed and baseless assertions that you make in a manner unbecoming of someone purporting to be putting out credible information.

     

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      Mike (profile), May 12th, 2006 @ 2:00pm

      Re: Amicus

      For those interested, the amicus brief noted by Mike deals with a very narrow circumstance in which two clearly obvious prior art technologies are joined.

      Again, you miss the point of my pointing to that brief. It wasn't to say that such an amicus brief was the ONLY defense of a better obviousness test, but that there are clear concerns among others (since you have repeatedly said that I am the only one who believes what I say).

      wild eyed and baseless assertions that you make in a manner unbecoming of someone purporting to be putting out credible information.

      This from a practicing patent lawyer who uses pseudonyms, posts under many different names to support his own points, calls me an idiot, a moron, ignorant, a ninny, and then ties it together with lies and baseless accusations (such as us being funded by the NY Times, CNN or RIM) that he ignores when proven false? You mean to tell me that this is conduct becoming of someone putting out credible information?

      Sorry, Rob, I don't buy it.

       

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    Rob Scott, May 12th, 2006 @ 2:45pm

    As far as I can see

    What you're saying is that something in addition to prior art is necessary. If I'm right, I'm not sure why you cant use simpler language - as Mark Twain said: "makes things as simple as possible but not simpler"

    But you don't seem to get it. To allow anyone other than the patent office to review obviousness is inviting distaster by way of conflict. The Examiner is in the position to represent the interests of the public and is positioned as the person of ordinary skill. You may scoff at this, but unlike someone working in a narrow field the Examiner sees inventions from a wide array of applicants in a very specific field. It does not take long for the Examiner to become proficient at determining what is obvious or not in thier field.

    To entertain random commentary from industry is folly and is moot anyway in view of third party submissions as I noted with regard to 37 CFR 1.99.

    Again, the example is not really relevant to the larger process associated with determinations of obviousness. The amicus brief deals only with the narrow circumstance of combining two clearly known elements. It deals with the problem of producing art for things that are clearly known or would have clearly been known.

    Contrary to being an example of a probem with the obviousness test, the narrow circumstance is an interesting case and is the kind of thing that makes people glad to be lawyers in the first place.

    On the one hand, nobody wants so-called "bad patents" to issue, on the other hand, the patent office is under the burden of establishing a prima facie case of obviousness (not non-obviousness as you note) if they cant support the contention that the combination is obvious the law compels them to grant the patent ("a patent shall be issued unless:" )

    Its easy to be an armchair quarterback. Once the idea is disclosed to the office, its easy to make a post hoc judgement that "oh that would have been obvious" However, during examination this is called "hindsight reconstruction" and is improper. Thus, to try to make some sort of subjective determination of obviousness, which is what you're advocating, would be a huge step backward for patent law.

     

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      Mike (profile), May 12th, 2006 @ 4:11pm

      Re: As far as I can see

      But you don't seem to get it. To allow anyone other than the patent office to review obviousness is inviting distaster by way of conflict. The Examiner is in the position to represent the interests of the public and is positioned as the person of ordinary skill. You may scoff at this, but unlike someone working in a narrow field the Examiner sees inventions from a wide array of applicants in a very specific field. It does not take long for the Examiner to become proficient at determining what is obvious or not in thier field.

      Heh. Amazingly enough, we actually agree here. You're arguing something I never said. I never said we should let others decide whether or not it's obvious, but that the patent examiner should get their input in determining the obviousness -- though I do question your assertion that patent examiner are "proficient" in determining what is obvious. I think there are enough examples in certain fields to show that is not the case.

      As for you continually pointing to existing rules concerning submitting prior art, I've already explained that's different. It is cumbersome, pricey, and does not involve the patent examiner going out and asking from those who know. Instead, it requires individuals or companies to closely follow what is happening at the patent office, which is, for those of us who focus on working, a waste of time.

      Furthermore, as we've pointed out repeatedly, that system is only for supplying prior art, not discussing whether or not something is obvious -- and the two are separate points.

       

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    Lawyers Blow, Jun 24th, 2006 @ 3:26am

    Obvious, isn't it?

    I think it's "obvious" you both have no life other than steading yourselves at the keyboard, polishing up some 'net nerd I.Q. toughman practice. Silly lawyers, go find a short, short ledge high above some dusty cliffs and J U M P. ( just be sure you have an "obvious" well made parachute to soften the fall or the world will be stripped of two fine humans and suffer immensely. Uh huh.

     

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