When All Else Fails, Sue For Patent Infringement

from the this-again? dept

We've seen it all too often over the years. After a technology company has failed to get anywhere in the market with its products, it decides to sue everyone possible for patent infringement. As has been said: Those who can, innovate. Those who can't, litigate. The latest to join the bunch is a failed multimedia device company, e.Digital, who is suing a ton of companies, claiming to hold a patent on using removable flash drives in portable devices. Seriously. It's already sued Casio, LG Electronics, Olympus, Samsung, Sanyo, Vivitar, Avid and Nikon (all in Texas, of course) and says that's just the beginning.

The patents in question are as follows:
  • US5491774: Handheld record and playback device with flash memory
  • US5742737: Method for recording voice messages on flash memory in a hand held recorder
  • US5787445: Operating system including improved file management for use in devices utilizing flash memory as main memory
  • US5839108: Flash memory file system in a handheld record and playback device
  • US5842170: Method for editing in hand held recorder
To think that others weren't thinking about removable solid state storage on devices seems rather ludicrous. The real innovation in the space may have been the creation of flash memory, but to claim that using removable flash memory is an innovation worth limiting with patents just doesn't make any sense. But, once again, this shows how the patent system is being used for the exact opposite of what it's supposed to do. The company that failed in the marketplace gets to hold up those who are succeeding because they made a better product.

For additional irony, by the way, it should be remember that one of e.Digital's failed media devices looked almost identical to the iPod, and was named the "Treo 10" -- quite similar to the Treo mobile phone device. I would think that charges of "copying" would apply a lot more to that device than anyone using the fairly obvious idea of using removable flash storage in a mobile device.


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  1.  
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    Chronno S. Trigger, Jun 27th, 2008 @ 9:25am

    US5491774

    I read the first patent there and it completely changed my mind about patents. That idea may (emphasis on may, probably not) have been a good and novel idea in 1994 but it's blatantly obvious now. 20 years for a patent is far to long when technology changes from one month to the next.

     

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  2.  
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    PaulT (profile), Jun 27th, 2008 @ 9:33am

    Re: US5491774

    The only real "innovation" there is the inclusion of the words "flash memory" into a description of a handheld tape recorder - which existed well before 1994.

    The others are just as dumb - portable dictation machine, ROM-based OS, EEPROM memory and sound editing package. All of which existed well before the patents were filed, but somehow the addition of "flash memory" means they think they can sue everyone for it.

    This is a failed system. The problem isn't that this lawsuit's happening, it's that these patents passed more than 5 minutes examination before being rejected, let alone passed in the first place.

     

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  3.  
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    Chronno S. Trigger, Jun 27th, 2008 @ 9:37am

    Re: Re: US5491774

    Yeah, I was continuing to think about this and realised that it was just taking two items already in existence and putting them together. No patent should ever be issued for that.

     

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  4.  
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    Anonymous Coward, Jun 27th, 2008 @ 10:08am

    MM

    Have you ever seen a patent that defines a non-obvious invention and promotes economic progess?

     

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  5.  
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    Anonymous Coward, Jun 27th, 2008 @ 10:10am

    Re:

    I second this motion. Just for the sake of a healthy discussion i would like to study some patents that genuinely did the job that patents are supposed to do.

     

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  6.  
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    Ron Milplease, Jun 27th, 2008 @ 10:47am

    iPod

    e.Digital had a music player before Apple, and a flash voice recorder before anyone.

    Popular Machanics gave them an award for thier voice recorder.

    Wish these writers would do their dd.

     

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  7.  
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    Willton, Jun 27th, 2008 @ 11:14am

    Re: Re: US5491774

    The only real "innovation" there is the inclusion of the words "flash memory" into a description of a handheld tape recorder - which existed well before 1994.

    The others are just as dumb - portable dictation machine, ROM-based OS, EEPROM memory and sound editing package. All of which existed well before the patents were filed, but somehow the addition of "flash memory" means they think they can sue everyone for it.


    Try actually reading the patents. You'll notice that at the time of the invention, prior attempts to actually incorporate flash memory into handheld devices had failed greatly, mainly due to the inability to incorporate interchangeable drives into handheld devices. Now, if that's wrong, feel free to show us the reference that says so, but I'm going to trust that the examiner did his homework in examining and granting this application.

    You may poo-poo the combination of flash memory in handheld devices as not being that innovative in early 1994, but I find it a little disingenuous for you to say that 14 years later with the benefit of hindsight.

     

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  8.  
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    Chronno S. Trigger, Jun 27th, 2008 @ 11:24am

    Re: Re: Re: US5491774

    That argument would fit if the patent was about the innovative and previously unavailable way to connect the two devices together, but this is just about connecting the two, not about how.

     

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  9.  
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    angry dude, Jun 27th, 2008 @ 11:43am

    Mikey's doing his shitting routine

    Come on punks

    Mikey is just trying to create grass-root support for his anti-patent agenda in the (predominantly) lemming population of techdirt readers
    Just one shitty inet blog to put shitty articles and write shitty comments
    a 2 min shitting break
    i'm tired and bored and need a drink
    2 more hours to put up with all the shit

     

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  10.  
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    Willton, Jun 27th, 2008 @ 11:50am

    Re: Re: Re: Re: US5491774

    That argument would fit if the patent was about the innovative and previously unavailable way to connect the two devices together, but this is just about connecting the two, not about how.

    Did you actually read the patent document? Did you read the detailed description? I'd excuse you if you looked at it and felt overwhelmed, as it's pretty substantial, but my guess is that you didn't give it a first look. If you had, you'd notice that it gives a pretty detailed how-to that a skilled practitioner could follow in order to make the invention.

    If the patent did not show how to make the claimed invention, then the patent would not be enabling and would be rejected by the PTO. I'd be very suprised if PTO allowed that patent if it did not describe how to make even one embodiment of the invention.

    If you're going to say that this patent did not explain how to make the invention it claims, then you're going to have to show us.

     

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  11.  
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    Tattler, Jun 27th, 2008 @ 12:41pm

    Turnabout is fair play

    Maybe someone should bring this to the attention of the recording industry. Sounds like this is a device designed to pirate concert performances. "flash memory recording medium which enables noise dampened recording of voice data and CD quality stereo recording of music data."

     

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  12.  
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    eDig Lover, Jun 27th, 2008 @ 12:57pm

    eDig Article

    My comment on the author: What a moron!

     

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  13.  
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    Mike (profile), Jun 27th, 2008 @ 1:49pm

    Re:

    Have you ever seen a patent that defines a non-obvious invention and promotes economic progess?

    Since it needs to do both of those things, no I have not -- though I'm not saying they don't exist. I'm still waiting to see one however.

    And, to be clear, the "non-obvious" criteria is supposed to be non-obvious to those skilled in the art -- meaning that it's unlikely that others in the space would come up with the same idea on their own eventually. That's *very* rare.

    And, even in those cases, it's hard to find a case where it helps, rather than hinders economic progress.

    But if someone can show me some such patent, that would be great to see.

     

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  14.  
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    Mike (profile), Jun 27th, 2008 @ 1:51pm

    Re: eDig Article

    My comment on the author: What a moron!

    If you want to be taken seriously, it helps to actually have an argument when you disagree with someone. If you just want to insult people, most people will immediately figure out that you really have no leg to stand on.

    That is, you're not helping yourself by calling me a moron without explaining where or how you disagree with me.

     

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  15.  
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    Anonymous Coward, Jun 27th, 2008 @ 3:17pm

    Re: Re:

    "...eventually."

    When. Today? Tomorrow? Next week? Next year?

    One of the purposes underlying the patent system is to make the solution known ASAP. Your suggestion provides no such encouragement, so I am at a loss to truly understand how your hands off, market based approach, if preferrable.

    As for your answer to the initial question, it seems consistent with the general tenor of the points you repeatedly make in your articles. Why not just simply come out and say that the patent system should be eliminated in its entirety, rather than falling back on "promote progress", what TJ said in a letter many years after both the Patent and Copyright Acts of 1790 were enacted?

     

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  16.  
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    Mike (profile), Jun 27th, 2008 @ 3:26pm

    Re: Re: Re:

    When. Today? Tomorrow? Next week? Next year?

    Well, considering history has shown time and time again that similar inventions are created within a year of each other, it would seem like that's pretty common. And that makes the term of a patent seem that much worse.

    One of the purposes underlying the patent system is to make the solution known ASAP.

    Not really. 18 months to publish (these days). If others have already come up with a similar solution, what benefit is that?

    Besides, these days, so many patents are written so broadly that the "disclosure" part is bogus. And, honestly, if the idea is really that important, the inventor will find it more valuable to keep as a trade secret anyway. The only reason to go with a patent is because he *knows* that it's really not that big a deal.

    Why not just simply come out and say that the patent system should be eliminated in its entirety, rather than falling back on "promote progress", what TJ said in a letter many years after both the Patent and Copyright Acts of 1790 were enacted?

    Because the key is to promote the progress. That really is the most important part. If someone can show me how the patent system does that, then that would be great. So far, no one has.

     

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  17.  
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    Bewildered Coward, Jun 27th, 2008 @ 3:47pm

    Re: Mikey's doing his shitting routine

    Did out outsource your Techdirt postings or something? Originally you at least tried to engage in some meager level of intellectual debate on these boards, but recently all you've done is climb out of your tree to fling feces and say "punks" a lot.

    We get it.

    You "disagree."

     

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  18.  
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    Anonymous Coward, Jun 27th, 2008 @ 3:59pm

    "Not really. 18 months to publish (these days). If others have already come up with a similar solution, what benefit is that?

    Besides, these days, so many patents are written so broadly that the "disclosure" part is bogus. And, honestly, if the idea is really that important, the inventor will find it more valuable to keep as a trade secret anyway. The only reason to go with a patent is because he *knows* that it's really not that big a deal."

    Please tell me how I and my colleagues "hid the ball" when we prepared and prosecuted the following?


    http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL& ;p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=4739474.PN.&OS=PN/473 9474&RS=PN/4739474

    BTW, the invention did not admit to trade secret protection (it is a product susceptible to reverse engineering) and a domestic and international search of relevant prior art, virtually all of which the inventor was intimately familiar turned up nothing remotely relating to his concept of massive parallel processing wherein a conventional adder or adder/subtractor could be used to achieve both logical and arithmetical operations.

    All of us who worked on the application, both the inventor and attorneys, worked our *utts off to explain what we understood to be a parallel processing breakthrough. To suggest the procilivity of attorneys to obfuscate in a detailed description of an invention, while maybe having some limited support, is hardly ever the case. Our professional reputations, not to mention our continuing ability to practice law as members of state bars and the courts, depend upon our being open and forthright.

    So, I ask you to read it, tell me where we "hid the ball", and then tell us why you may believe it would have been obvious to one of ordinary skill in the art back in the early 80's.

    A word of caution. After this patent issued and other parties began to work in this area using the teachings of the patent, our inventor and his work was repeatedly cited as comprising the "prior art". There are precious few instances where this ever proves to be the case. i.e., where one inventor is acknowledged to be the preeminent expert in the field.

     

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  19.  
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    LawyerLong, Jun 27th, 2008 @ 4:42pm

    Re:

    Wow. A real discussion on merits of these patents.

    I notice that no one is pointing out that a major and well-respected IP litigation firm has taken this case on contingency, and their internal criteria for taking cases on continggency requires their approval committee to render a finding that there is a 75% chance of success.

    The author may or may not be correct in his assessment that the system is "broken" but EDIG and their attorneys are merely following the law.

    And those who say the inventor did nothing more than suggest putting two ideas together knows even less than do I.

    Kudos to anonymous coward on his posts.

    LL

     

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  20.  
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    Mike (profile), Jun 27th, 2008 @ 4:59pm

    Re:

    Please tell me how I and my colleagues "hid the ball" when we prepared and prosecuted the following?

    I never said that all patents "hid the ball." I don't know enough about parallel processing to say much about this patent. I'm sure it's a good and important patent, but how does it promote the progress to put up a tollbooth on others improving on the concepts in the patent?

     

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  21.  
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    Mike (profile), Jun 27th, 2008 @ 5:22pm

    Re: Re:

    I notice that no one is pointing out that a major and well-respected IP litigation firm has taken this case on contingency, and their internal criteria for taking cases on continggency requires their approval committee to render a finding that there is a 75% chance of success.

    I don't find that to be very compelling. The discussion is on whether or not these patents are helping or hindering innovation. The fact that the patent system is broken is well established. To say that a patent lawyer thinks they'll win in a broken system has no bearing on this point.

     

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  22.  
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    Lawyerlong, Jun 27th, 2008 @ 5:28pm

    Re: Re: Re:

    For me, as a shareholder of EDIG, they are two separate issues. And, if you read the commentary, two separate issues have emerged.

    One is whether the patent system does what it is supposed to do. I care about that and think there are two strong and opposing views on it. Clearly the big boys don't want to pay retroactively using revenues already reported whether they fairly or unfairly appropriated technology. They have launched a serious lobbying effort under the nom de guerre "patent reform committee" or some such. I hope the correct decision is reached at some point.

    The other issue raised is that this company has no merit in their claims. It is clearly the decision of at least one major law firm that they do. And, assuming that can translate into a higher share price for EDIG I hope they are correct.

    I didn't create this separate issue, just responded to it.

    LL

     

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  23.  
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    Little Techdirt Lemming Punk, Jun 27th, 2008 @ 6:10pm

    heh

    Abstract
    A method of memory management for a primary memory created from a non-volatile, long-term storage medium, in particular flash memory, which enables direct manipulation of data segments stored therein.

    Are they claiming a patnet on FAT32 ?
    http://www.patentstorm.us/patents/5745902.html

    No, of course not, they are completely different

     

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  24.  
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    Mike (profile), Jun 27th, 2008 @ 6:57pm

    Re: Re: Re: Re:

    One is whether the patent system does what it is supposed to do. I care about that and think there are two strong and opposing views on it. Clearly the big boys don't want to pay retroactively using revenues already reported whether they fairly or unfairly appropriated technology. They have launched a serious lobbying effort under the nom de guerre "patent reform committee" or some such. I hope the correct decision is reached at some point.

    That's misleading. You make it sound as if this is some sort of battle between big companies and small companies. I am very much against the patent reform act. This is not an issue of big companies against little companies. This is an issue about what best "promotes the progress."

    There is a ton of evidence to suggest the answer is "not patents."

    And, I find it bizarre that you focus on whether or not technology was "appropriated unfairly." How do you unfairly build a product?

    The other issue raised is that this company has no merit in their claims. It is clearly the decision of at least one major law firm that they do. And, assuming that can translate into a higher share price for EDIG I hope they are correct.


    Not quite. It is an issue as to whether or not they can win under the law -- but again, to us that is meaningless. The patent system is broken and has been for years. The fact that one company can abuse the system is not a very interesting issue.

     

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  25.  
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    LawyerLong, Jun 27th, 2008 @ 7:39pm

    Re: Re: Re: Re: Re:

    "And, I find it bizarre that you focus on whether or not technology was "appropriated unfairly." How do you unfairly build a product?"

    Obviously you are not a student of patent litigation. I could have used the word steal or, even more precisely, infringe. Many companies have made fortunes using technology which was not theirs. The originators are protected under the system which you claim to be broken - maybe it is, maybe it isn't. We agree the patent reform act was merely casting the potential unfairness in another direction.

    "Not quite. It is an issue as to whether or not they can win under the law -- but again, to us that is meaningless. The patent system is broken and has been for years. The fact that one company can abuse the system is not a very interesting issue."

    That's silly. Winning under the law is not abusing the system. The law IS the system. Whether the system abuses the rights of others is a separate question.

    LL

     

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  26.  
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    Mike (profile), Jun 27th, 2008 @ 8:28pm

    Re: Re: Re: Re: Re: Re:

    Obviously you are not a student of patent litigation.

    What makes you say that? I've been studying and writing about these issues for more than a dozen years.

    I could have used the word steal or, even more precisely, infringe.

    You could have, though I would have asked the same question. And, actually, if you had used "steal" I would have pointed out how wrong that is. You cannot steal an idea.

    Many companies have made fortunes using technology which was not theirs.

    You missed the crux of my question. How can there be an idea that someone else cannot use? Don't you find that troublesome? The fact that an *idea* is blocked from use?

    That's silly. Winning under the law is not abusing the system. The law IS the system. Whether the system abuses the rights of others is a separate question.

    I disagree. It absolutely can be abusing the system.

     

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  27.  
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    Anonymous Coward, Jun 27th, 2008 @ 8:40pm

    Re: Re:

    "...how does it promote the progress to put up a tollbooth on others improving on the concepts in the patent?"

    What makes you think we even tried to put up a tollbooth? We most certainly did not. There were other compelling business reasons besides trying to extort rents.

     

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  28.  
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    LawyerLong, Jun 27th, 2008 @ 8:49pm

    Re: Re: Re: Re: Re: Re: Re:

    I can see this is one of those "someone is on mars someone is on venus" discussions.

    If you succeed in having the law rewritten or reinterpreted to conform to your views, then I will be on the same side of the argument as you. Until then, the law and interpretation of same are the guiding principles. Whether they are "right" or "wrong" are important, but in some ways, irrelevant. In a perfect world those multiple concepts would align. Sort of like Mars and Venus do occasionaly.

    Good luck to you.

    LL

     

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  29.  
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    Anonymous Coward, Jun 27th, 2008 @ 9:03pm

    Re: Re: Re: Re: Re: Re: Re:

    "How can there be an idea that someone else cannot use?"

    I know you think it trite, and I know that you will say "in theory, but not in practice", but the fact remains that neither patent nor copyright law protect ideas per se.

     

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  30.  
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    A Thinker, Jun 28th, 2008 @ 7:43am

    Mr. Mike-You are probably just one of those that hate the whole system of law in the US. This company and it's inventions were very important to the beginning of the whole digital era. They worked and collaborated with Intel, IBM, Samsung and many, many more in the early days of falsh memory. You really need to get the chip off of your shoulder and study history a little bit before running off your mouth with no facts at all. I am actually embarassed by people like you-why would any reputable company allow your articles to be published at all anywhere.

    http://findarticles.com/p/articles/mi_m0WUB/is_1999_April_19/ai_54414384
    http://www.allbusiness.c om/company-activities-management/board-management/6755059-1.html
    http://patft.uspto.gov/netacgi/nph -Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-bool.html&r=1&f =G&l=50&co1=AND&d=PTXT&s1=%22e.digital%22&OS= (look at the references)

     

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  31.  
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    A Thinker, Jun 28th, 2008 @ 7:45am

    Line 3 should say "flash memory".

     

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  32.  
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    IP Analyst, Jun 28th, 2008 @ 9:50am

    Mike, I was a technology engineer for 21 years. During that time I was forbidden by my management to check with the patent office to see if what I was working on was already patented. And, neither they nor our legal team would do it either. Since then I've talked with hundreds of engineers from many different industries and found that around 90% of them have the same story.

    Patents must be written so that anyone skilled in that area can understand them. The USPTO search engines are easy to use and most patents can be designed around by skilled and capable engineers. It's the weak ones that choose to just copy what someone else is doing rather than come up with their own solution. I'm guessing many of the other posters here as well as yourself would fit in this category.

    There is nothing wrong with our patent system, the problem is with corporate culture that thinks there is nothing wrong with profiting from other peoples ideas and research and development for free. I am quite happy with this situation actually because I make far more now tracking down devices that infringe my clients patents than I ever did as an engineer (I did well at that too). This practice of using other peoples technology and ideas without paying for it will keep me busy for many years to come. These are the real morons.

    The fact that a company goes out of business because they couldn't make it for whatever reason does not negate their right to protect the ideas and technology that they invested many dollars to develop. They used their resources to create something useful and often times quite valuable, do you really think you should have unlimited access to it for free?

    Save yourself the trouble and learn to read patents, then learn to design around them you'll be glad you did.

     

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  33.  
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    Ulle, Jun 28th, 2008 @ 10:33am

    how does a company stay in business for 20 years and never show a profit?

     

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  34.  
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    Samuel, Jun 28th, 2008 @ 12:07pm

    Obviousness

    The concept of replacing the analog tape compact cassettes and microcassettes used in handheld voice recorders with the removable flash cards that were in development in the early 90's when this patent was filed is obvious, even to someone not skilled in the art. This patent has a high probability of being invalidated.

     

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  35.  
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    Anonymous Coward, Jun 28th, 2008 @ 2:15pm

    Re: Obviousness

    You are talking about a concept...an idea if you will. But what was in part patented was a device with a large assortment of physical parts. Ideas/concepts are not patentable. Only embodiments of such ideas/concepts are potentially subject to patent protection, and the scope of any such patent is defined by each and every word appearing in each of the claims of the patent.

     

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  36.  
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    Samuel, Jun 28th, 2008 @ 6:33pm

    Re: Re: Obviousness

    Even what was patented was limited to a specific design for a handheld voice recorder with removable flash memory, yet E.Digital claims it has a general patent for using removable flash memory in a variety of devices including cell phones, digital cameras, etc. and is suing accordingly.

    Not only is the concept for using removable flash memory as a recording/storage mechanism in a voice recorder obvious, but E.Digital's expanded claim that it has a patent on the use of removable flash memory in other portable electronic devices is utterly ridiculous.

     

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  37.  
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    Anonymous Coward, Jun 28th, 2008 @ 7:13pm

    Re: Re: Re: Obviousness

    Detailed description sections of a patent application are not required to describe every possible form or use of a device. One must describe at least one embodiment embodiment, and in doing so must describe the one that at the time of filing is the then most preferred form (so-called "best mode"). You will note that the claims of the patent are not limited to solely the preferred embodiment.

    It is appropriate to note that eDigital holds more than just the patents mentioned in the article, and that such patents are directed to a large number of separate and distinct inventions. For those directed to hand held recorders, the claims are obviously drafted such that they encompass more than just hand held recorders per se. Hence, there is nothing surprising that the claims appear to read on other products such as cell phones, cameras, and other devices incorporating a recording feature.

     

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  38.  
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    Samuel, Jun 28th, 2008 @ 7:15pm

    Additional irony

    The Wikipedia article on this company and its links show an even greater additional irony than the Treo 10.
    http://en.wikipedia.org/wiki/E.Digital_Corporation

    After it failed in all of its prior product offerings, E.Digital did custom product development for an entreprenuer with an idea for a multimedia device to be used for in-flight entertainment. Although the entreprenuer, who was an airline baggage handler, required E.Digital to sign an agreement not to compete with his company prior to disclosing his idea, e.Digital ended up changing its business plan and became a direct competitor of the entreprenuer's company, which he had sold to a successor company which named it digEcor. DigEcor is suing E.Digital for breaching its agreement not to compete.

     

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  39.  
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    Willton, Jun 28th, 2008 @ 7:49pm

    Re: Re: Re: Obviousness

    Even what was patented was limited to a specific design for a handheld voice recorder with removable flash memory, yet E.Digital claims it has a general patent for using removable flash memory in a variety of devices including cell phones, digital cameras, etc. and is suing accordingly.

    There's something in patent law called the "doctrine of equivalents," which allows a patentee to make a claim of infringement if the allegedly infringing object is covered by every element of the asserted patent claim or equivalents thereof. For instance, if you have a patent for a train coal car that is circular in shape, and the alleged infringer makes a coal car that is octagonal in shape, patent law allows for a claim of infringement under the doctrine of equivalents. See Winans v. Denmead, 56 U.S. 330 (1854). Basically, the doctrine of equivalents, which has been part of patent law for over 150 years, allows the patentee to assert a claim over every form in which his invention may be copied that has not been disclaimed.

    Not only is the concept for using removable flash memory as a recording/storage mechanism in a voice recorder obvious, but E.Digital's expanded claim that it has a patent on the use of removable flash memory in other portable electronic devices is utterly ridiculous.

    Even assuming that the concept was obvious at the time it was made, that does not mean that reducing it to practice was obvious to one of ordinary skill in the art. It is one thing to dream up a concept; it is a far different thing to reduce that concept to practice in an apparatus. It is highly probable that trying to combine flash memory with a voice recorder had its problems prior to this invention. And unless you have some tangible evidence that says otherwise, it's fair to presume that, after having the patent examined by the PTO, the invention was not obvious.

    If anything's utterly ridiculous, it is your proclamation that this patent is bogus without presenting any evidence to support your claim.

     

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  40.  
    identicon
    Andrew D. Todd, Jun 28th, 2008 @ 9:44pm

    Lack of Prior Art in Patents

    I looked at the reference lists for the five patents, and found that only two patents before 1980 were cited, one of them in 1893 (!). There were no journal articles before 1992. Assorted patents referenced the Microsoft Press Computer Dictionary (1994). Patents 5,787,445 and 5,839,108 both referenced a bunch of sophomore level data structures textbooks, mostly from the late 1980's. This is another way of saying that the patentees tried to present no prior art at all, but that the patent examiner, probably a recent college graduate, checked the obvious places in his ten hours or so of allotted time for examination, and found some prior art, but not enough.

    When you find a patent which is suspiciously short of prior art, and yet you know people were doing all kinds of possibly related things at an earlier date, alarm bells should go off in your head. For example, there is a body of literature dating from the 1960's, notably the writings of D. S. Halacy (_Computers: The Machines We Think With_, 1964?, etc.), Kurt R. Stehling (Computers and You, 1972?), and John Kemeny (Man and the Computer, 1972), which described in broad terms, for people who had no actual acquaintance with computers, the kinds of things a sufficiently expensive computer could do. Someone who was considerably older than the patent examiners, and had grown up reading these kinds of books, might have approached the patent applications with a bit more skepticism.

    Back in the 1970's, people thought that "Bubble Memory" would be useful for the functions eventually assumed by Flash Memory. This means that you will find early descriptions of how people proposed to use something very like a Flash Memory, only filed under another name. The Techdirt blog system doesn't seem to like people putting in large numbers of links, so I'll just give you this one, the result of a quick search for "bubble memory" AND "tape recorder":

    "A Solid State Replacement for Satellite Tape Recorders," R. F. Plachy, JOHNS HOPKINS UNIV SILVER SPRING MD APPLIED PHYSICS LAB, JUL 1972

    http://stinet.dtic.mil/oai/oai?verb=getRecord&metadataPrefix=html&identifier=AD07506 60

    My advice if you are looking for prior art is to read through back issues of: The Futurist, Scientific American, Popular Mechanics, and Popular Science, until you find something which sounds like the point at issue. That will give you some names, both names of people, and names of technologies, and you can then search more regularly for those.

     

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  41.  
    identicon
    Anonymous Coward, Jun 29th, 2008 @ 4:01pm

    I thought about just such a device in the sixties, should've gotten a patent, updated it continuously until someone finally made a profit from selling such a device and then I should've sued the hell outta them theiving basturds

     

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  42.  
    identicon
    Michael F. Martin, Jun 29th, 2008 @ 4:50pm

    Re:

    This is the most interesting and insightful comment I've read on this blog in a while! Thanks for sharing your experience.

    I think that part of the pattern of management practices with regard to IP has been reinforced by antiquated theories of accounting which treat anything that could be sold (even theoretically) in a bankruptcy liquidation as "assets." Because patents are analogized to property rights, and property (of course) is an asset on balance sheets, IP got lumped into the same category.

    But useful inventions of course are more like equity in that they improve manufacturing quality and efficiency, or open entirely new markets.

    I would bet that if the accounting rules that managers and investors follow with regard to IP were changed, then management and investment in IP would be much less wasteful.

     

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  43.  
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    Mike (profile), Jun 29th, 2008 @ 10:40pm

    Re:

    Mr. Mike-You are probably just one of those that hate the whole system of law in the US.

    Not at all. I find it amusing that you accuse me of not knowing anything and making assumptions, and then you break that out. My opinions are quite clear. If you are going to yell at me for not doing research, you might want to start out by actually doing some research yourself.

    Or is that too difficult?

     

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  44.  
    icon
    Mike (profile), Jun 29th, 2008 @ 10:52pm

    Re:

    Mike, I was a technology engineer for 21 years. During that time I was forbidden by my management to check with the patent office to see if what I was working on was already patented. And, neither they nor our legal team would do it either. Since then I've talked with hundreds of engineers from many different industries and found that around 90% of them have the same story.

    Actually, I've written about exactly that. You're right. Most engineers are told not to look at patents to avoid willful infringement triplicate damages.

    But, don't you see? That PROVES that patents aren't particularly useful for the whole "disclosure" aspect that patent supporters constantly talk about. It SHOWS that people don't use patents to learn from and build on.

    Patents must be written so that anyone skilled in that area can understand them.

    In theory, not practice.

    The USPTO search engines are easy to use and most patents can be designed around by skilled and capable engineers. It's the weak ones that choose to just copy what someone else is doing rather than come up with their own solution.

    If the problem were people copying from patents, this wouldn't be much of a discussion. That's not what's happening in most cases -- as even you admitted in your initial paragraph. There's plenty of independent invention and people getting slammed after the fact with patent suits from overly broad patents.

    I'm guessing many of the other posters here as well as yourself would fit in this category.

    When you have no real argument, it's always best to insult the person you're talking to.

    There is nothing wrong with our patent system

    Other than about 30 studies that have all shown that it does not actually do the ONE thing it was supposed to do: encourage innovation.

    I am quite happy with this situation actually because I make far more now tracking down devices that infringe my clients patents than I ever did as an engineer (I did well at that too).

    So you profit from a bad system, and we're supposed to think that makes you trustworthy on why the system is good, despite stacks upon stacks of evidence showing the contrary?

    The fact that a company goes out of business because they couldn't make it for whatever reason does not negate their right to protect the ideas and technology that they invested many dollars to develop. They used their resources to create something useful and often times quite valuable, do you really think you should have unlimited access to it for free?

    I think competition should take place in the market, and those who can provide what the market wants deserve to profit from it. Those that lose in the market have no right to demand a piece of the profits from those who succeeded.

     

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  45.  
    identicon
    A Thinker, Jun 30th, 2008 @ 6:10am

    Re: Re:

    Mr. Mike-Did you look at any of the links that were provided? I have done more research on this company in the last 15 years than you have probably done on everything you have researched total. Notice the qualifier 'probably'. The point is that you aren't learned enough in this area to even make an opinion, other than exactly what you did. That is to slam a company who made some very important inventions that affect some of the technology that you use today.

    Let's suppose that someone, in their garage, invents a detailed method for building a car engine that gets one hundred miles to the gallon and then files and receives a patent on it. This person does not have the funds to build a manufacturing plant to build the engine or can't really market the invention properly. He goes out and tries to talk to large companies to get something going, but has no luck. The companies look at the idea and realize that this method would work. They take the idea and add a thing or two because technology may have changed a little since the invention. They then mass produce the engine and sell it all over the world for the next few years, without any regard whatsoever for the patent holder. Not only that, but large companines all over the world begin making engines using the same technology also. As time and years go by, even though the same engine had actually morphed into something totally different because of new technology, the fact is that it wouldn't have happened in the first place had the patented method not happened.

    My question to you-should the patent holder have any right to file a suit to recover anything because of this situation.

    These inventions were far more important that you understand. I and a lot of others here have done our research; the problem is that we don't have time to do the research for you too.

    Good luck to you.

     

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  46.  
    identicon
    angry dude, Jun 30th, 2008 @ 6:40am

    Re: Re: Re:

    Come on, dude

    What do you expect from Mikey ?

    Everybody and his dog knows that Mikey is a corporate stooge

     

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  47.  
    identicon
    Ex-e.Digital employee, Jun 30th, 2008 @ 10:12am

    Treo

    I worked for e.Digital when the Treo phone was announced. e.Digital had trademarked the name and the other company had failed to do a proper investigation on it. That deal wound up being handled by a gentleman's handshake IIRC.

    I still have the Treo 10 that I got when I left the company in Jan. '02, and it still works, but is a bit clunky next to present day digital music players and it does not look anything like the iPod. It has buttons, is encased in a rectangular aluminum case about the size of the laptop HD used inside of it, but twice as thick. The battery would power it for 10-12 hours as well.

    There were a variety of other players, some flash based, others HD based, including the ones with VoiceNav, which I incorporated into the software code base. Pretty slick for their time, but there is no competing with Apple.

    Too bad they have gone the patent troll route. They're finished now.

     

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  48.  
    icon
    Mike (profile), Jun 30th, 2008 @ 10:15am

    Re: Re: Re:

    Did you look at any of the links that were provided?

    Sure. And not one convinced me that the initial statements I made were incorrect. The company failed in the marketplace. Why should we reward them for that?

    I have done more research on this company in the last 15 years than you have probably done on everything you have researched total

    Well, you must be quite proud of yourself.

    The point is that you aren't learned enough in this area to even make an opinion, other than exactly what you did.

    I had no clue that I needed your permission to have an opinion. Next time I'll run it by you first.

    But, then I might remember that we live in a free society, and I can have any opinion I want -- and I'm freely allowed to share it. You're free to disagree with me and try to convince me otherwise. And, on that, you have so far failed.

    But, when someone tells me I'm not allowed to have an opinion, it's usually because they don't want to understand the argument I am making, and have decided the best answer is to stick fingers in their ears and yell "SHUT UP" as loudly as possible.

    Very convincing.

    In the meantime, since you're going to act so high and mighty and insist that no one but yourself is allowed to have an opinion on the economic impact of such patents, might I ask how much economics you've studied? You see, you seem to think that the only thing relevant here is the patents -- not the economics.

    That is to slam a company who made some very important inventions that affect some of the technology that you use today.

    Whether or not they made fundamental inventions is rather meaningless. They failed in the marketplace.

    Let's suppose that someone, in their garage, invents a detailed method for building a car engine that gets one hundred miles to the gallon and then files and receives a patent on it. This person does not have the funds to build a manufacturing plant to build the engine or can't really market the invention properly.

    That's what we have capital markets for. In this day and age, if he actually did that, there would be a path beating down his door looking to fund him.

    He goes out and tries to talk to large companies to get something going, but has no luck. The companies look at the idea and realize that this method would work. They take the idea and add a thing or two because technology may have changed a little since the invention. They then mass produce the engine and sell it all over the world for the next few years, without any regard whatsoever for the patent holder.

    And, yes, now the world is a better place because people have access to that engine. And, of course, you leave out the reality of the situation -- which is that if the guy were really so brilliant and had really come up with an idea that no one else could have come up with (which is extremely unlikely) then these car companies would be dying to offer him a job to keep working on it and other inventions.

    Also, you leave out the reality of the situation -- which is that those "thing or two" modifications the car companies make turn out to be incredibly important, because those car companies actually understand the market, and what it takes for such a product to succeed. In other words, it's better for everyone involved.

    the fact is that it wouldn't have happened in the first place had the patented method not happened.

    Ah, the fairy tale of the "inventor." That's a myth. Almost every major invention has occurred to multiple people at the same time -- locking it up and giving it over to a single individual is an abomination against nature. Furthermore, "invention" is rarely the important part in a successful new technology. It's the process of innovation, figuring out what actually makes it work and what the market actually wants, that's the hard part.

    My question to you-should the patent holder have any right to file a suit to recover anything because of this situation.

    I think my answer is clear from my statements above.

    You believe the myth of the lone inventor. It clouds your thinking, despite little proof that such a thing exists.


    These inventions were far more important that you understand. I and a lot of others here have done our research; the problem is that we don't have time to do the research for you too.


    If they were so important, then eDig should have done a better job marketing them. It failed. The market has decided, and that's better for everyone.

    Good luck to you.

    And to you.

     

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  49.  
    identicon
    Anonymous Coward, Jun 30th, 2008 @ 10:37am

    Re: Re: Re: Re:

    "abomination against nature"

    Even you have to admit this statement is a bit over the top.

    "Furthermore, "invention" is rarely the important part in a successful new technology. It's the process of innovation, figuring out what actually makes it work and what the market actually wants, that's the hard part."

    "Invention" is the first step in a long and difficult, if not tortuous, process that may or may not succeed for any number of reasons. It does, however, have one salutory effect. Without it steps 2 and subsequent do not occur.

     

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  50.  
    identicon
    Willton, Jun 30th, 2008 @ 11:04am

    One point

    "Let's suppose that someone, in their garage, invents a detailed method for building a car engine that gets one hundred miles to the gallon and then files and receives a patent on it. This person does not have the funds to build a manufacturing plant to build the engine or can't really market the invention properly."

    That's what we have capital markets for. In this day and age, if he actually did that, there would be a path beating down his door looking to fund him.


    That "path" would be less likely to do so if Mr. Inventor could not obtain a patent on this method, believe me. For something like that, which would likely very difficult to reduce to practice but rather easy to reverse engineer, the investors may be less likely to sink their money into such a project if they knew that a second-comer could easily copy the process with ease.

     

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  51.  
    identicon
    Willton, Jun 30th, 2008 @ 11:07am

    Re: One point

    Damn you, lack of an edit button. The last line should read "For something like that, which would likely be very difficult to reduce to practice but rather easy to reverse engineer, the investors may be less likely to sink their money into such a project if they knew that a second-comer could easily copy the process."

     

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  52.  
    icon
    Mike (profile), Jun 30th, 2008 @ 11:11am

    Re: Re: Re: Re: Re:

    Even you have to admit this statement is a bit over the top.

    Not at all. Telling someone they can not do the most appropriate thing to provide what society is demanding is an abomination against nature. Limiting an infinite resource is an abomination against nature -- no different than if we destroyed our environment. You are destroying an important resource.

    "Invention" is the first step in a long and difficult, if not tortuous, process that may or may not succeed for any number of reasons. It does, however, have one salutory effect. Without it steps 2 and subsequent do not occur.

    Indeed. Never said otherwise.

    Where you go wrong is in thinking that patents are the way to create the incentive for that. The evidence shows that's not the case at all. The market itself provides the incentive in demanding products.

     

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  53.  
    icon
    Mike (profile), Jun 30th, 2008 @ 11:15am

    Re: One point

    That "path" would be less likely to do so if Mr. Inventor could not obtain a patent on this method, believe me

    Not at all in practice. Living here in Silicon Valley and spending plenty of time with venture capitalists, these days it's only the clueless VCs who think patents are important. More and more are recognizing that they're a huge waste of time and money.

    For something like that, which would likely very difficult to reduce to practice but rather easy to reverse engineer, the investors may be less likely to sink their money into such a project if they knew that a second-comer could easily copy the process with ease.

    That's not at all true, as has been seen over and over again. If the market demands the product, there will be plenty of incentive to fund the leader in the space.

    Part of your mistaken belief is that this initial spark of inspiration is really the most important part of all of this. Even if the basic concept is easy to reverse engineer, that's almost always meaningless -- because bringing the product to market will require many changes and adjustments. Having the guy who understands the product the best on board is a key advantage.

     

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  54.  
    identicon
    Anonymous Coward, Jun 30th, 2008 @ 11:35am

    Re: Re: Re: Re: Re: Re:

    "Where you go wrong is in thinking that patents are the way to create the incentive for that."

    You must have me confused with those who say that our economy thrives because of patent law. I have never said this. All I have ever suggested is that patent law is not the "evil creature" so many make it out to be.

     

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  55.  
    identicon
    Willton, Jun 30th, 2008 @ 11:38am

    Re: Re: One point

    Not at all in practice. Living here in Silicon Valley and spending plenty of time with venture capitalists, these days it's only the clueless VCs who think patents are important. More and more are recognizing that they're a huge waste of time and money.

    And living here in New Jersey, the land of Big and Small Pharma where real science an innovation occurs, I can tell you that scientists, R&D folks, and the companies that employ them rely heavily on the patent system to secure funding for their inventions, and if such a system did not exist, their industries would be slowed considerably.

     

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  56.  
    identicon
    Anonymous Coward, Jun 30th, 2008 @ 6:30pm

    Re: Re: Re:

    "Let's suppose that someone, in their garage, invents a detailed method for building a car engine that gets one hundred miles to the gallon and then files and receives a patent on it."

    Gallon of what ?
    Maybe you meant to say Dilythium Crystal.

     

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  57.  
    icon
    Mike (profile), Jun 30th, 2008 @ 7:31pm

    Re: Re: Re: One point


    And living here in New Jersey, the land of Big and Small Pharma where real science an innovation occurs, I can tell you that scientists, R&D folks, and the companies that employ them rely heavily on the patent system to secure funding for their inventions, and if such a system did not exist, their industries would be slowed considerably.


    Ah, no wonder you're horribly biased. You're influenced by the worst abusers of the system.

    Anyway, that would be nice if true, but as the research has shown, even without patents, there's an active pharma industry, developing basic research. So, the idea that a lack of patents would slow innovation is false.

    In fact, it would most likely refocus innovation on where it matters: actually keeping people healthy, rather than just on drugs. That's one huge problem with the patent system: it distorts the market. So now the focus is on getting pharma patents, rather than on keeping people healthy. Sometimes they overlap, quite often they do not.

    I'd rather the market work properly, where we can have more people healthy. There would be plenty of investment in that, if it weren't all being suckered into bogus pharma claims.

     

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  58.  
    identicon
    Willton, Jul 1st, 2008 @ 6:10am

    Re: Re: Re: Re: One point

    Ah, no wonder you're horribly biased. You're influenced by the worst abusers of the system.

    Look who's talking.

    Anyway, that would be nice if true, but as the research has shown, even without patents, there's an active pharma industry, developing basic research. So, the idea that a lack of patents would slow innovation is false.

    What research? Where do you get this research? And don't give me this bullshit about "You should be able to go find it yourself." You're the one proffering the evidence; it is your burden to present it.

    In fact, it would most likely refocus innovation on where it matters: actually keeping people healthy, rather than just on drugs. That's one huge problem with the patent system: it distorts the market. So now the focus is on getting pharma patents, rather than on keeping people healthy. Sometimes they overlap, quite often they do not.

    And how would you propose that pharmaceutical companies keep people healthy? Not create drugs? When the business is pointed towards discovering new medicines that can cure or treat various illnesses that are prevalent in this country, how is that not focused on keeping people healthy?

    Yes, healthcare and drugs are expensive. I wish they weren't. But I also wish that researching and developing those drugs was not super expensive either, and that unfortunately is not a reality. When you ask a company to provide a good or service in a for-profit market, the company has an expectation of making a profit. And that's rather tough to do without protection if the good is extremely expensive to create but amazingly cheap to reproduce.

     

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  59.  
    identicon
    A Thinker, Jul 1st, 2008 @ 8:32am

    Re: Re: Re: Re:

    Mr. Mike-Did anyone say that you shouldn't have as opinion? I believe that it was said that you weren't learned enough to make an opinion that was credible. I have better things to do. End of Thread.

     

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  60.  
    identicon
    Willton, Jul 1st, 2008 @ 10:39am

    Re: Re: Re: Re: Re:

    Mr. Mike-Did anyone say that you shouldn't have as opinion? I believe that it was said that you weren't learned enough to make an opinion that was credible. I have better things to do. End of Thread.

    And, just so no one miscontrues what A Thinker says, he means that Mike should educate himself more on the subject prior to rendering his opinion, not shut up altogether.

     

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  61.  
    identicon
    Anonymous Coward, Aug 17th, 2009 @ 8:16pm

    you are a freakin idiot

     

    reply to this | link to this | view in thread ]


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