Yet Another Example Of Innovation Without Patent Protection

from the must-be-magic dept

Lately, there's been a growing body of research on industries like fashion and restaurants that thrive without the aid of patent or copyright protections. In these industries, the lack of legal barriers allows innovative ideas to spread rapidly within the industry, while informal social mechanisms like reputation ensure that innovators get proper credit for their creativity. Ed Felten points out a paper by Yale law student Jacob Loshin that explains how the magic industry has thrived without resorting to legal protections for new inventions. Instead, the magic community uses social norms to reward those who discover new magic tricks and punishes those who disclose them to non-magicians. Because magicians rely so much on their professional network of other magicians to learn about new tricks, new equipment, and new performance opportunities, maintaining a good reputation within the magic community is essential to the career of a successful magician. A magician who uses another magician's trick without giving the originator proper credit, or who reveals secrets to non-magicians, is shunned by other magicians. That kind of ostracism can be a much better (not to mention cheaper) way of disciplining wayward members than getting the lawyers involved. While it's absolutely true that the specific circumstances surrounding the magic industry don't necessarily apply to other industries, between this, the fashion industry and the restaurant industry, we're seeing time and time again that innovation can thrive and mechanisms (whether social norms or business models) are quickly presented to reward the innovators -- even if those innovations can (and often are) quickly copied.


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  1.  
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    angry dude, Sep 11th, 2007 @ 1:46pm

    wanna be a magician

    Too bad I'm an engineer and not a magician
    In this shitty business you get neither credit nor money.
    Shit
    Wrong choice of profession
    Too late for me I guess

     

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  2.  
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    RandomThoughts, Sep 11th, 2007 @ 1:55pm

    There was a magician that was going to file a lawsuit, but all his evidence disappeared.

     

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  3.  
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    RandomThoughts, Sep 11th, 2007 @ 1:58pm

    Innovation in fashion? OK, this dress will be red. This dress will be black. What innovation is there in that?

    Restaurants? Innovation?

    Seriously though, you guys are trying to hard?

     

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  4.  
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    Anonymous Coward, Sep 11th, 2007 @ 2:08pm

    Re:

    colors are one thing, but styles are another - and plenty of new styles happen all the time. The g-string bikini may not be what most call innovation, but most do enjoy them and wouldnt not live as happy a life without seeming them worn every once in a while.

     

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  5.  
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    directed thoughts, Sep 11th, 2007 @ 2:26pm

    Re:

    Within the fasion industry simple changes in color palates are indeed inovative in the way they influence designs (Earthy browns with light blue trend we saw last season).
    One could easily draw a comparisson to what you view as obvious next steps to some of the lawsuits we see in the tech world (mobile email anyone?)

     

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  6.  
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    mr. negativity, Sep 11th, 2007 @ 2:28pm

    Re: Re:

    Thing is, it didn't (read shouldn't have) cost millions to develop those styles, or those new cuisines. Even magic tricks are much cheaper to develop than say a new drug. The issue is that it takes years of scientific R&D that requires thousands if not millions of dollars to do testing and get through the red tape of releasing something, even if it's only a minor increment over what exists.
    Guaranteed, if it cost the inventor of the deep fried twinkie a couple hundred million to create the first one, they'd be pretty pissed if they didn't see a return on that investment.
    Back to the magic community argument, if a car company shuns another car company...who cares? As a consumer, if I can get car A for $50k or car B for $20k with the only difference being the name and the fact that car B contains technologies they didn't have to develop...I'm going with car B.

     

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  7.  
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    Sage, Sep 11th, 2007 @ 2:30pm

    Lowbrow perhaps...

    Random Thoughts, it appears your idea of style is shopping at the Salvation Army and eating at Taco Bell. Perhaps if you actually ate at a "sit-down" restaurant and improved your wardrobe, you'd realize there is a great deal of style in these markets...geez.

     

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  8.  
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    dorpus, Sep 11th, 2007 @ 2:54pm

    Vicious Jugglers

    Speaking from my experience in the juggling community, there are in fact a lot of heated accusations going back and forth about who invented which trick. The very advanced jugglers tend to be people-hating weirdos. Magicians, clowns, and jugglers tend to hate each other. Magicians are the sleazy con men, clowns are fat guys who can't do more than a basic 3-ball juggle, jugglers are just mute athletes.

     

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  9.  
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    RandomThoughts, Sep 11th, 2007 @ 2:54pm

    Style and innovation are two different things. I will have you know I never eat at Taco Bell, and when was the last time button down shirts were updated? Or Business suits, or shoes?

     

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  10.  
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    Greg, Sep 11th, 2007 @ 3:00pm

    RandomThoughts, assuming you're not trolling, that's a dramatic oversimplification. If you seriously can't look at fashion today and what it was even 20 years ago, and see a dramatic difference, then there's something wrong with you.

    Seriously, try this experiment: go watch an old movie or TV show. Not even old, old, just like The French Connection or Miami Vice something. Tell me those clothes don't look dated. Even if you can't quantify why they look different, you have to be aware that they are. Right?

    Anyway, back on topic, even if magicians didn't shun the snitches, there's the fact that patent applications are public record, so anyone trying to patent a trick essentially makes it worthless, since everyone knows how it's done now. Sure, no one else can use it without paying you, but you aren't going to draw crowds doing it either, once the secret is out.

     

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  11.  
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    Sage, Sep 11th, 2007 @ 3:03pm

    I don't think anyone is suggesting that business suits are innovative. Chefs and designers constantly have to innovate to stay on top. This innovation is what drives style. To make a blanket statement that there is no innovation in fashion or cuisine seems to indicate to me a lack of exposure to fashion beyond the 3-button shirt. :)

    Sorry about the Taco Bell jab...I do feel bad about that.

     

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  12.  
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    chris (profile), Sep 11th, 2007 @ 3:24pm

    the prestige!?!?

    didn't anyone see "the prestige"?

    magicians are nasty backstabbing thieves and smashers of birds. who needs patent protection when you can be murdered? after watching that movie i'll never watch david blaine again no matter what he is willing to subject himself to.

    seriously tho... patenting a process means making the process of a magic trick public. that pretty much ruins the "magic" of the trick. there is an argument in "the prestige" about that very issue. i hate IP and patents as much as the next guy, but magicians and other circus folk are not exactly good examples to reference in our fight for reform.

    also, the "innovation" in fashion has little to do with the clothes themselves and more to do with the seasonal trends. designs are obsoleted every season. the obsolescence is not just planned, it's expected, anticipated even.

    no one would bother to patent anything if every year all research and development could be rendered "not hot" by a group of popular engineers.

    "please... one click commerce is so 2004! green computing is the new Java!"

     

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  13.  
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    JGM, Sep 11th, 2007 @ 3:24pm

    The idea that magicians are a self-correcting society via social norms has little to do with intellectual property. Most of the "tricks" that magicians trust each other not to reveal are decades if not centuries old.

    Magicians have not hesitated to patent mechanisms and techniques for truly new illusions, and have not been ostracized for it. See http://en.wikipedia.org/wiki/David_Copperfield%27s_flying
    for one particular example.

    Moreover, plenty of folks who have access to these secrets are more than willing to reveal them (remember the Masked Magician specials of a few years ago, or just start searching google or YouTube for "magic secrets"). The thing is, people just don't care that much; they *know* it's a trick, the enjoyment comes in being fooled or presented with a seamless illusion. The point being that the supposed "social norm enforcement" has nothing to do with the ongoing if often-marginalized success of magic.

     

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  14.  
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    Steve, Sep 11th, 2007 @ 3:28pm

    Get real

    Would you invest in an electronics company that did not bother to file patent applications on their innovations? If so, you're a fool. If a startup invents and prototypes an amazing new IPTV or mobile platform, and tries to market it to any of the established OEMs or service providers, the startup will quickly learn that those larger companies will gladly ask an ODM to copy the invention without compensating the startup, if they think they can do so without infringing any patents. That's a fact of life.

     

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  15.  
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    Willton, Sep 11th, 2007 @ 3:34pm

    Fashion is not Functional

    This "inovation" in styles that the fashion and restaurant businesses claim to make does not constitute functional innovation. There's no functional difference between a plaid shirt and a striped shirt. Likewise, there's nothing truly functional about arranging different dishes at a restaurant. If changing styles and food arrangements do not present functional improvements on existing methods and technology, how is that innovative?

    The patent system is about bringout out new ideas from inventors who would otherwise keep them secret. The fashion and restaurant industries would die if they tried to keep their so-called innovation secret. Using the fashion and restaurant industries as examples of how the world would be better without patents is stupid.

     

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  16.  
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    Jerry Seinfeld, Sep 11th, 2007 @ 3:36pm

    The twirl

    I knew that I should have gotten a patent on the twirl....now that stupid Teddy Peddelack is taking all the credit!

     

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  17.  
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    TheDock22, Sep 11th, 2007 @ 3:41pm

    Bad Examples

    I don't think you can compare magicians to a reason why the patent system doesn't work because they are entertainers and not inventors or what not. Actors and actresses don't patent their acting techniques and yet we aren't looking to them for why the movie industry is innovative (bad example I know because movie innovations have to do with not only actors, but special FX and a good story line).

    Besides, magicians aren't as innovative as you think. They all have the same old tricks. Their art is in tweaking the presentation.

     

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  18.  
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    Mike (profile), Sep 11th, 2007 @ 4:06pm

    Re:

    Innovation in fashion? OK, this dress will be red. This dress will be black. What innovation is there in that?

    Click on a few of the links (the underlined things in the post) and you'll find out that there is a ton of innovation in the fashion industry. To claim otherwise is playing the fool.

    Restaurants? Innovation?

    Again, click a link before you starting sounding ignorant.

    Anyway, the point still stands. The purpose of intellectual property is to create incentives for innovation... and we're seeing all kinds of innovation in other industries that don't have IP protection... Tim clearly said there are differences in this example, but the point is that from industry to industry, there are always models that seem to present themselves that don't involve IP protection.

     

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  19.  
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    Mike (profile), Sep 11th, 2007 @ 4:09pm

    Re: Re: Re:

    Thing is, it didn't (read shouldn't have) cost millions to develop those styles, or those new cuisines.

    That's a bogus argument. Copyright applies to anything I write, even this sentence. That didn't cost millions to create, yet we still have copyright, right?

    Back to the magic community argument, if a car company shuns another car company...who cares?

    You seem to have missed the point by a pretty large margin. The point is that there are *other* mechanisms (in this case social norms, but it need not always be) to explain how the community makes sure people get credit. No one is saying that what works in the magician community works exactly in other industries. In fact, Tim was quite clear to say that wasn't true. For you to pretend that's what Tim was implying doesn't make you look particularly credible.

     

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  20.  
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    Mike (profile), Sep 11th, 2007 @ 4:13pm

    Re: the prestige!?!?

    seriously tho... patenting a process means making the process of a magic trick public. that pretty much ruins the "magic" of the trick. there is an argument in "the prestige" about that very issue. i hate IP and patents as much as the next guy, but magicians and other circus folk are not exactly good examples to reference in our fight for reform

    The only point, as was made clear in the post, wasn't that the way magicians do things is the correct way, but that we're seeing numerous different areas where IP protection isn't necessary, and that other models have a way of forming to allow the creators to profit from their creation.

    It seems like it's everyone bashing this post who is trying to stretch its meaning into something that it clearly did not say.

    also, the "innovation" in fashion has little to do with the clothes themselves and more to do with the seasonal trends. designs are obsoleted every season. the obsolescence is not just planned, it's expected, anticipated even

    Actually, this is wrong. We recently posted a study that showed the entire reason why you have innovation in seasonal trends is because of the lack of IP protection in the industry. If designers could patent or copyright their designs, you wouldn't see such seasonal changes as the trends would last much longer. The reason the trends change so rapidly is that designers are pushed to continually innovate.

    no one would bother to patent anything if every year all research and development could be rendered "not hot" by a group of popular engineers.

    Yeah, but if engineers had to keep designing new products and features to stay ahead of the competition (or to leapfrog the competition), don't you think we'd be seeing a lot more innovation?

     

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  21.  
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    Mike (profile), Sep 11th, 2007 @ 4:38pm

    Re: Get real

    Would you invest in an electronics company that did not bother to file patent applications on their innovations? If so, you're a fool. If a startup invents and prototypes an amazing new IPTV or mobile platform, and tries to market it to any of the established OEMs or service providers, the startup will quickly learn that those larger companies will gladly ask an ODM to copy the invention without compensating the startup, if they think they can do so without infringing any patents. That's a fact of life.

    Ah, yet another person who doesn't know anything about the history of patents and makes a bunch of wrong assumptions. Just look at industries in countries that didn't have patent protection. The Netherlands got rid of patent protection and it helped spur innovation and industrialization. The Swiss purposely kept their patent system weak and narrowly defined and it helped spur tremendous innovation and investment in a few key industries.

    Yes, it's true that some companies may copy a product, but real innovation isn't about just coming up with a product, but about continually improving on it and better serving your market.

    There are better mp3 players out there than the iPod, but Apple has done a bunch of innovative stuff (including bundling things like iTunes and having superior marketing) so that the iPod can still outsell all those companies who copied Apple.

    So, stop worrying about people copying ideas, and just focus on serving your customers better and better.

     

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  22.  
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    Adam Wasserman, Sep 11th, 2007 @ 4:43pm

    Millions of R&D

    Although we could debate on some aspects of fashion, I am reasonably sure that the perfume part of the fashion industry does indeed spend millions on R&D, and they operate without patent protection.

    There is no legal barrier to creating "smell-alike" perfumes, but consumers continue to buy the original...

     

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  23.  
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    James R. Taylor, Sep 11th, 2007 @ 5:09pm

    Innovation? Magic?

    Innovation? Magic? Seriously, you can use those words in the same sentence together? Magicians perform the same routines that have been done for decades. And many of those tricks are little more than refinements of acts done and developed centuries ago.

    As someone who's been around the scene for nearly thirty years, I can tell you that, by and large, these is no profession so moribund and totally LACKING in true innovation as magic.

     

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  24.  
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    Nick (profile), Sep 11th, 2007 @ 5:28pm

    perfume industry: another great example

    Great that you brought this up, Adam Wasserman. You cannot patent perfume that have natural ingredients because you cannot patent natural ingredients (or something along those lines). This is why low cost knock-off perfumes makers of natural ingredient perfumes are allowed to exists. Yet, the perfume companies that originate scents and use natural ingredients and have high budget design and marketing behind them continue to exists and turn profits. I might not have worded this exactly well, so Mike, you can elaborate.

     

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  25.  
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    Pope Ratzo, Sep 11th, 2007 @ 6:03pm

    Innovation??

    If you ever want a laugh, take a look at some of the YouTube reports from Fashion Week. You'll hear breathless fashion reporters go on and on about how "innovative" a designer is for "bringing back gray" or how daring for lowering a hemline.

    My favorite is one where the critic guy was waxing poetic about how some design house had "reinvented hair". When the models came out, they all had pony tails. I laughed so hard that my wife thought I was going to have an aneurysm.

    I certainly believe that there can be innovation without intellectual property, but I don't think the fashion industry is the best example.

     

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  26.  
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    Anonymous Coward, Sep 11th, 2007 @ 6:36pm

    Tim Lee, this is an excellent topic! Thank you for such a good read and for it generating this discussion of "heated viewpoints". I look forward to reading more from you in the future!

     

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  27.  
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    ehrichweiss, Sep 11th, 2007 @ 6:45pm

    I am a magician..

    Magicians have played by this game for ages and we DO have patents on some tricks but those are few and far between since we as magicians are sworn to secrecy and a patent only reveals those secrets.

    However, if you were to talk to a magician, they'd likely tell you that if the patent system were able to keep methods secret(say with an NDA) then we'd be all about using them because while there are innovators, there are also TONS of thieves. A close friend produces some of the best hand made magic available on the planet and some idiot has stolen his design and is producing the effects he has created without the least bit of innovation on their part.

    The thing is, MOST of magic cannot be patented since it is simply a rehash of prior methods...and we distinguish between props, gimmicks and methods much more than the average person because a magic trick can be entirely composed of a gimmick, or it may only play a small part, or one of a million other possibilities. As magicians we tend to have more than one method to get the same effect, so if I make a card reappear at the top of the deck after you've seen it placed in the middle of the deck, the next time I do it may be via a completely different method and you'll be none the wiser.

    What's the point? If the patent system were a little more intuitive and secretive, we'd be using it to no end.

     

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  28.  
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    RandomThoughts, Sep 12th, 2007 @ 5:54am

    I didn't realize the fashion police were here, but my point wasn't that the fashion industry doesn't innovate, but to equate their innovation with patents and then say "see, they can work without patents" (with the underlying point that we don't need patents at all, and I know Mike, you will say that you never said you want to get rid of patents, but when it walks like a duck and quacks like a duck, it usually is a duck) is just wrong.

    As I walk by Bryant Park every day during the week, I do have to laugh about the comment on Fashion Week here. Last night as I left work, I was two blocks down from Bryant Park when up the avenue came running a flock of models who were obviously late for their runway walk (session, whatever). As for their value? Well, I never bothered to look at their shoes or their clothes, but I guess that type of model marketing doesn't work for me.

     

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  29.  
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    Vincent Clement, Sep 12th, 2007 @ 6:23am

    Re: Re: Re:

    Guaranteed, if it cost the inventor of the deep fried twinkie a couple hundred million to create the first one, they'd be pretty pissed if they didn't see a return on that investment.

    Since when were patents and copyrights meant to guarantee a return on investment? At most, patents and copyright are meant to provide an opportunity to earn revenue.

    As a consumer, if I can get car A for $50k or car B for $20k with the only difference being the name and the fact that car B contains technologies they didn't have to develop...I'm going with car B.

    That assumes that it is easy to not only copy, but easy to incorporate those technologies. Sure, I may be able to backward engineer something, but I still have to figure out how to manufacture it cheaper than the original innovator. I also have to figure out how to successfully or better promote it. All these things require financial investments.

    People still buy Tylenol or Aspirin despite the wide availability of cheaper generic versions. Brand recognition goes a long way.

     

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  30.  
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    Vincent Clement, Sep 12th, 2007 @ 6:32am

    Re: Bad Examples

    Besides, magicians aren't as innovative as you think. They all have the same old tricks. Their art is in tweaking the presentation.

    Invention != Innovation

    Anyone can invent anything. There are thousands upon thousands of patents sitting at the USPTO collecting dust. Innovation involves successfully marketing that invention.

    It's that tweaking of the presentation that is the innovation. Many magicians do the 'saw the lady in half' trick, and most people know how it works. But some magicians are much better at presenting that trick. Magic is about entertainment.

     

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  31.  
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    RandomThoughts, Sep 12th, 2007 @ 6:34am

    Exactly right Vincent, patents are not meant to guarantee a ROI, it guarantees an opportunity for the ROI. Without that, some products would never make back its initial investment, which in the long run, would stifle innovation, because some products would never be developed.

     

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  32.  
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    Society Guy, Sep 12th, 2007 @ 6:41am

    Social Norms

    In terms of how social norms can effect behavior - I just tell my kids not to illegally download music - and they don't.

    What if we mutually established a value within our society that innovation is important and stealing is wrong. While the concept is simple, it is not easy.

     

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  33.  
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    Buzz, Sep 12th, 2007 @ 8:09am

    Hmmm

    I agree with the concept presented in this article, but I also see some minor discrepancies. Magic, food, and clothing are all explicit presentations. Food and clothing have all their secrets sitting right in front of you allowing close examination. Magic (as mentioned above) would be foolish to patent since it would reveal the secrets. With computer software, the patented material usually dwells deep within the depths of the actual code (except for cases like eBay's Buy-It-Now and Amazon's basket deals).

    Regardless, I strongly agree that the other three industries prove that there are far superior methods to promoting innovation than through patents and litigation. My question is this: if the patent system were entirely removed, how would society adapt? Would everyone invent or innovate? Would everyone be scared? Or would the continually innovating companies stay on top? Hmmm... ^_^

     

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  34.  
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    Mike (profile), Sep 12th, 2007 @ 9:30am

    Re:

    Without that, some products would never make back its initial investment, which in the long run, would stifle innovation, because some products would never be developed.

    Or, more likely, new models would be found by innovators to get the ROI that was necessary in providing products demanded in the market, and the ongoing competition to out-innovate each other would increase, rather than stifle, the pace of innovation.

     

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  35.  
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    Mike (profile), Sep 12th, 2007 @ 9:32am

    Re: Hmmm

    My question is this: if the patent system were entirely removed, how would society adapt? Would everyone invent or innovate? Would everyone be scared? Or would the continually innovating companies stay on top?

    Luckily, we have some examples -- such as when the Netherlands completely ditched their patent system for a period of a few decades. Contrary to the widespread myth that patents are necessary, during that period of time the Netherlands industrialized, built up some key industries that were both innovative and competitive.

     

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  36.  
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    angry dude, Sep 12th, 2007 @ 10:10am

    Re: Re: Hmmm

    Mike, everybody is fed up with your bogus examples

    I have another example for you - China

    They didn't have any IP protection at all and they managed to build a huge industrial nation in just a short period of time.
    Only they didn't invent anything - just manufactured things already invented in the West
    Only now they are trying to implement some form of working IP protection system to develop more competitive R&D
    No IP protection = no R&D

    Like I said, get a real job, dude

     

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  37.  
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    Mike (profile), Sep 12th, 2007 @ 10:26am

    Re: Re: Re: Hmmm

    Mike, everybody is fed up with your bogus examples

    Ah, right. Academic research that was published and peer reviewed and plenty of supporting historical evidence. That's bogus? Uh huh...

    They didn't have any IP protection at all and they managed to build a huge industrial nation in just a short period of time.
    Only they didn't invent anything - just manufactured things already invented in the West


    Actually, there's been a fair amount of innovation coming out of China... and some of it has been on the business model side. Certainly there is plenty of copying going on, but much of that has actually hurt Chinese company's and their reputation. But to say there's no innovation coming out of China is wrong.

    Only now they are trying to implement some form of working IP protection system to develop more competitive R&D

    Ah, no, you seem to have gotten that wrong. They're working on adding IP for two reasons: pressure from foreign firms who don't want to innovate and compete *and* pressure from Chinese firms who don't want to keep up the pace of innovation and want to lock in their position, rather than continue to compete against smaller firms.

    No IP protection = no R&D

    Provably false, but if you keep saying it maybe someone will believe you.

     

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  38.  
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    Anonymous Coward, Sep 12th, 2007 @ 10:51am

    Re: Fashion is not Functional

    The problem is that the patent system is meant to do this, but it does not. As time has progressed, patents have deliberately become more and more vague. What was once able to be used as a blueprint and practical explanation of how to make something has now morphed into a nebulous outline that could describe practically anything, and is certainly not useable to repeat the original invention.

     

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  39.  
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    chris (profile), Sep 12th, 2007 @ 11:11am

    Re: Re: the prestige!?!?

    i think we disagree on what innovation is. i was talking about innovation in the "improving things" sense, and i think you are talking about innovation in the "making things different" sense. if you count just changing things so they are always "new" but not necessarily "improved" as innovation, then yes, the fashion industry is probably the most innovative industry in the world because it scraps all of it's IP every 3 months and starts over.

     

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  40.  
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    Willton, Sep 12th, 2007 @ 11:37am

    Re: Re: Fashion is not Functional

    If that really is case, these patents that you describe likely have enablement problems and should be litigated.

     

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